SUPREME COURT DECISIONS INTERPRETING 

THE AMERICANS WITH DISABILITIES ACT 

Updated September 17, 2002 

National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

202-272-2004 Voice 

202-272-2074 TTY 

202-272-2022 Fax 

ACKNOWLEDGMENT 

The National Council on Disability (NCD) wishes to express its appreciation to Professor Robert 

L. Burgdorf Jr. for developing this analysis of Supreme Court decisions interpreting the 

Americans with Disabilities Act (ADA). 

INTRODUCTION 

NCD is composed of 15 members, appointed by the President of the United States and confirmed 

by the U.S. Senate. The overall purpose of the agency is to promote policies, programs, practices, 

and procedures that guarantee equal opportunity for all people with disabilities, regardless of the 

nature or severity of the disability, and to empower them to achieve economic self-sufficiency, 

independent living, and inclusion and integration into all aspects of society. Part of NCD’s 

statutory mandate is to gather information about the implementation, effectiveness, and impact of 

ADA. 

In the last few years, the Supreme Court has issued a number of decisions that have dramatically 

changed the way ADA is interpreted, in most cases, contrary to what Congress intended. One 

decision in particular, Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 

(2001), devastatingly stripped the right of state workers to sue their employers for money 

damages for violations of Title I of ADA, which prohibits employment discrimination against 

people with disabilities. In response, NCD convened a series of meetings with disability policy 

experts to gain their assessment of the breadth and nature of the impact of Supreme Court 

decisions on ADA and other key civil rights laws. 

This paper is intended to increase public awareness of ADA as interpreted by the Supreme Court 

and to give policymakers and ADA stakeholders an overview of ADA issues addressed by the 

1

Supreme Court, a synopsis of the decisions, and the significant implications of each decision in 

helping or hindering implementation of ADA. Finally, this paper is intended to assist in the 

examination of the work that remains to be done to realize the law’s promise. 

I. OVERVIEW OF ISSUES ADDRESSED BY THE COURT IN ADA CASES 

A. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998). 

ISSUE: Whether Title II of ADA covers state prisons and prisoners. 

B. Bragdon v. Abbott, 524 U.S. 624 (1998). 

ISSUES: Whether a dental patient’s asymptomatic HIV infection constituted a 

disability under ADA, and whether the evidence in the case was sufficient to 

defeat the dentist’s asserted defense that filling the patient’s cavity in his office 

would in his professional judgment have presented a direct threat to health or 

safety. 

C. Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). 

ISSUE: Whether a general arbitration clause in a collective bargaining agreement 

requires an employee to use the arbitration procedure to address an alleged 

violation of ADA. 

D. Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). 

ISSUE: The extent to which application for and receipt of disability benefits 

precludes a person with a disability from bringing an ADA claim. 

E. Sutton v. United Airlines, 527 U.S. 471 (1999). 

ISSUES: Whether, in a lawsuit brought by two job applicants with severe 

nearsightedness (myopia) to challenge an airline’s minimum vision requirement 

for global pilots, corrective and mitigating measures should be considered in 

determining whether an individual is disabled under ADA, and whether the 

applicants had stated a valid claim that the airline regarded them as disabled. 

F. Murphy v. United Parcel Service, 527 U.S. 516 (1999). 

ISSUES: Whether the condition of a mechanic whose high blood pressure was 

controlled by medication should be considered in a medicated or nonmedicated 

state in determining whether he has a disability, and whether an employer’s belief 

that the employee’s high blood pressure prevented him from satisfying a DOT 

2

health requirement for driving commercial vehicles constituted regarding him as 

having a disability under ADA. 

G. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 

ISSUES: Whether having monocular vision constitutes per se disability under 

ADA and whether a DOT safety regulation justified an employer’s visual-acuity 

job qualification standard, even though the DOT regulation contained a waiver 

provision under which the standard could be waived in an individual case. 

H. Olmstead v. L.C., 527 U.S. 581 (1999). 

ISSUES: Whether ADA requires a state to place people with mental disabilities in 

community settings rather than in institutions when the state’s treatment 

professionals have determined that community placement is appropriate, and what 

standard is to be applied in assessing a state’s assertion of a fundamental 

alteration defense to the obligation to afford such community placement. 

I. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). 

ISSUE: Whether the Eleventh Amendment bars employees of a state from 

recovering monetary damages from the state for violations of Title I of ADA. 

J.	 Buckhannon Board and Care Home, Inc. v. W. Va. Dep’t of Health and Human 

Res., 532 U.S. 598, 121 S.Ct. 1835 (2001). 

ISSUE: Whether federal statutes that allow courts to award attorney’s fees and 

costs to the “prevailing party” authorize awards of fees to parties whose lawsuits 

brought about voluntary changes in the defendants’ conduct but did not result in 

judgments on the merits or court-ordered consent decrees. 

K. PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879 (2001). 

ISSUES: Whether Title III of ADA protects qualified entrants with disabilities 

participating in professional golf tournaments, and whether allowing a golfer with 

a disability to use a golf cart when all other competitors must walk would 

“fundamentally alter the nature” of the tournaments. 

L. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002). 

ISSUE: whether a worker's carpal tunnel syndrome and other painful conditions of her 

wrists, elbow, and shoulders substantially limited her in the major life activity of 

performing manual tasks and thus constituted a disability under the ADA. 

3

M.	 Equal Employment Opportunity Commission v. Waffle House, Inc., 122 S.Ct. 754 

(2002). 

ISSUE: whether an agreement between an employer and an employee to arbitrate any 

employment-related dispute or claim bars the Equal Employment Opportunity 

Commission (EEOC) from pursuing victim-specific remedies, such as backpay, 

reinstatement, and damages, against the employer for allegedly violating the ADA. 

N. U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002). 

ISSUE: whether the rights of a worker with a disability who seeks assignment to a 

particular position as a reasonableaccommodation underthe ADA take precedence over 

other workers' rights to bid for the position under the employer's seniority system. 

O. Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002). 

ISSUE:whethertheEqualEmploymentOpportunityCommission regulationthat allows 

employers to refuse to hire applicants because their performance on the job would 

endanger their health due to a disability is permitted under the ADA. 

P. Barnes v. Gorman, 122 S.Ct. 2097 (2002). 

ISSUE: whether punitive damages may be awarded in private causes of action brought 

under either Title II of the ADA or under Section 504 of the Rehabilitation Act of 1973. 

II. SYNOPSES OF THE CASES 

A. PENNSYLVANIA DEPARTMENT OF CORRECTIONS v. YESKEY 

Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998). 

Ronald Yeskey was convicted of a crime and sentenced to serve 18 to 36 months in a Pennsylvania 

correctional facility; the sentencing judge recommended that Yeskey be placed in a Motivational 

Boot Camp for first-time offenders. Successful completion of the boot camp program would have 

made Yeskey eligible for release on parole in six months. Yeskey was refused admission to the boot 

camp because he had a history of hypertension. Yeskey sued the Pennsylvania Department of 

Corrections and several corrections officials under Title II of ADA, alleging that his exclusion from 

the boot camp constituted discrimination on the basis of disability. The district court dismissed 

Yeskey’s case for failure to state a claim; it ruled that ADA does not apply to inmates in state 

prisons. The Third Circuit Court of Appeals disagreed and reversed the district court’s decision. 

4

In a unanimous opinion delivered by Justice Scalia, the Supreme Court ruled that ADA does cover 

state prisons and prisoners. The Court considered in turn and rejected several arguments put forth 

by the correctional officials. First, the officials contended that federal laws should not be interpreted 

to cover traditional and essential state functions, such as prisons, unless the language of the statute 

makes the coverage of such functions “unmistakably clear.” Id. at 208-09, quoting Gregory v. 

Ashcroft, 501 U.S. 452, 460-61 (1991). The Supreme Court assumed without deciding that the 

“unmistakably clear” standard applies to ADA’s coverage of state prisons, but ruled, however, that 

this requirement is “amply met” by Title II of ADA. 524 U.S. at 209. The Court declared that “the 

statute’s language unmistakably includes State prisons and prisoners within its coverage.” Id. 

The prison officials contended that ADA’s prohibition of discrimination in regard to the “benefits 

of the services, programs, or activities of a public entity,” 42 U.S.C. § 12132, could not apply to state 

prisons because they do not provide “benefits” of “services, programs, or activities.” The Supreme 

Court rejected this argument, finding that modern prisons provide inmates with many recreational 

activities, medical services, and educationaland vocational services that prisoners may benefitfrom. 

The Court noted that the boot camp that Yeskey was excluded from was described as a “program” 

in the statute that established it. 

The state officials also argued that the term “qualified individual with a disability” in ADA is 

defined as including those who meet “essential eligibility requirements for the receipt of services or 

the participation in programs or activities,” Id., § 12131(2), and that the words “eligibility” and 

“participation” imply voluntariness that does not fit the situation of prisoners. The Supreme Court 

ruled that these words do not connote voluntariness, as one can be eligible and participate even if 

participation is required for those prisoners who are eligible. Even if the words did connote 

voluntariness, said the Court, the use of various services at prisons, including prison law libraries, 

is clearly on a voluntary basis. Participation in the boot camp program involved in the case was 

voluntary under Pennsylvania law. 

The prison officials argued that the statement of findings and purpose in ADA does not mention 

prisons or prisoners and that Congress did not envision the law’s application in the context of 

prisons. The Court questioned the contention that ADA does not mention prisons, since the Act 

refers to “institutionalization,” Id., § 12101(a)(3), which the Court noted can be thought of as 

including “penal institutions.” But even if ADA did not mention prisons and Congress never 

considered them in its ADA deliberations, the Court said that it would not matter because ADA’s 

text is unambiguous. The Court recited a principle that it had applied in other contexts in which it 

had declared that “the fact that a statute can be ‘applied in situations not expressly anticipated by 

Congress does not demonstrate ambiguity. It demonstrates breadth.’” 524 U.S. at 212, quoting 

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985). 

Because it found ADA to be unambiguous as to coverage of prisons, the Court also rejected the state 

officials’ contentions regarding the implications of Title II of ADA’s title, “Public Services,” and 

the application of a doctrine called “constitutional doubt.” The Court ruled that these arguments 

would be applicable only if the statutory language was ambiguous. Ultimately, the Supreme Court 

affirmed the judgment of the Third Circuit “[b]ecause the plain text of Title II of ADA 

5

unambiguously extends to state prison inmates ....” 524 U.S. at 213. 

B. BRAGDON v. ABBOTT 

Bragdon v. Abbott, 524 U.S. 624 (1998). 

Sidney Abbott sought dental treatment at the office of Dr. Randon Bragdon in 1994. She had been


infected with HIV since 1986 but had not yet experienced any serious symptoms. On the patient


registration forms, Ms. Abbott disclosed that she was HIV-infected. Dr. Bragdon performed a dental


examination and found that Ms. Abbott had a cavity. He then informed her that he had a policy


against filling the cavities of patients with HIV in his office. He offered to fill her cavity at a


hospital, and added that she would have to pay for the costs of using the hospital’s facilities. Ms.


Abbott declined this offer and filed suit under ADA and state law charging Dr. Bragdon with


discriminating on the basis of disability. In particular, Abbott charged Bragdon with violating Title


III of ADA which prohibits discrimination “on the basis of disability in the full and equal enjoyment


of the goods, services, facilities, privileges, advantages, or accommodations of any place of public


accommodation by any person who ... operates a place of public accommodation.” 42 U.S.C. §


12182(a). Title III defines “public accommodation” to include the “professional office of a health


care provider.” Id., § 12181(7)(F).


After the discovery process had been completed, both Abbott and Bragdon filed motions for


summary judgment. The federal district court granted summary judgment in favor of Ms. Abbott,


ruling that her HIV infection constituted a disability under ADA and that there was no issue of fact


left to be decided. The district judge held that Dr. Bragdon could not successfully defend his actions


under ADA provision that excuses a covered entity from including an individual on an equal basis


if that person poses a “direct threat to the health or safety of others.” Id., 


§ 12182(b)(3). Relying on affidavits submitted in the case by the Director of the Division of Oral


Health of the Centers for Disease Control and Prevention (CDC), the district court concluded that


it was safe for dentists to treat patients infected with HIV in dental offices so long as “universal


precautions” prescribed by the CDC in 1993 were followed.


Dr. Bragdon appealed the decision of the district court, and the United States Court of Appeals for


the First Circuit affirmed the lower court’s decision in favor of Ms. Abbott. It agreed with the district


court that Abbott’s HIV infection was a disability under ADA even though it was not yet in the


symptomatic stage. The Court of Appeals decided not to rely on the CDC official’s affidavits


regarding the “direct threat” issue as the district court had, but found that the 1993 CDC Dentistry


Guidelines (officially titled “Recommended Infection-Control Practices for Dentistry”) and the


American Dental Association’s 1991 Policy on AIDS, HIV Infection and the Practice of Dentistry


led to the same conclusion—that dental procedures can be safely performed in dental offices if


universal precautions are followed.


The Supreme Court examined the question whether Ms. Abbott’s condition constituted a disability


under ADA at great length, and ultimately found that it did. The Court began with the statutory


6

language in ADA that defines disability: 

(A) a physical or mental impairment that substantially limits one or more of the 

major life activities of such individual; 

(B) a record of such an impairment; or 

(C) being regarded as having such an impairment. 

42 U.S.C. §12201(a). 

The Court noted that this definition of disability was “drawn almost verbatim” from the definition


of “handicapped individual” in the Rehabilitation Act of 1973 and of “handicap” under the Fair


Housing Amendments Act of 1988. 524 U.S. at 631. The Court observed that Congress intended the


term to be construed consistently with prior regulatory interpretations, and noted ADA’s provision


that nothing in ADA is to be construed to apply a lesser standard under ADA than under the


Rehabilitation Act of 1973 and the regulations that implement it. 42 U.S.C. 


§ 12201(a). The Court ruled that Ms. Abbott’s HIV infection was a disability under subsection


(A)—the actual disability prong—of ADA definition, and that, therefore, the Court did not need to


consider the second and third subsections of the definition. 


The Court went through a methodical analysis of each of the elements of the first prong of ADA


definition: physical or mental impairment, major life activity, and substantially limiting. In


considering whether HIV infection is a physical impairment, the Court examined in some detail the


process through which the infection progresses. The opinion describes how, when a person is


infected with HIV, the virus invades cells in the blood and body tissues, particularly certain white


blood cells, and eventually kills the cells it invades. The initial phase of HIV infection is known as


the “acute or primary” stage, typically lasting about three months, and, during this phase, the virus


concentrates in the blood and assaults the white blood cells. Fever, headaches, muscle pain, rash, and


other symptoms may appear, but typically go away after two or three weeks. The Court’s opinion


observes that after these symptoms have subsided, the disease enters what is sometimes called the


“asymptomatic phase.” The term is somewhat misleading because enlarged lymph nodes, skin


disorders, oral lesions, and bacterial infections may continue to be present. During this phase, which


usually lasts from 7 to 11 years, the virus switches its focus from the blood cells to the lymph nodes.


Finally, the immune system of the individual is sufficiently damaged that the disease enters the


AIDS stage, in which a variety of serious symptoms usually appear.


Based upon its review of the course of HIV infection, the Court reached the following conclusion:


In light of the immediacy with which the virus begins to damage the infected person’s white


blood cells and the severity of the disease, we hold that it is an impairment from the moment


of infection. 


524 U.S. at 637.


Having ruled that Ms. Abbott’s condition was a physical impairment, the Court next turned to the 

issue of whether it was an impairment that affects a major life activity. This question was narrowed 

somewhat by the fact that Abbott’s claim throughout the litigation was that the major life activity 

7

affected was the ability to reproduce and bear children. The Court noted that “[g]iven the pervasive, 

and invariably fatal, course of the disease, its effect on major life activities of many sorts might have 

been relevant to our inquiry,” and that there was little doubt that “had different parties brought the 

suit they would have maintained that an HIV infection imposes substantial limitations on other major 

life activities.” Id. The Court felt constrained, however, in the circumstances in which the case had 

been brought and litigated, to consider only the question whether reproduction is a major life 

activity. Despite arguments on behalf of Dr. Bragdon that Congress intended ADA to apply only to 

limitations on a person that have a public, economic, or daily character, the Court had little trouble 

finding reproduction was a major life activity, observing that “[r]eproduction and the sexual 

dynamics surrounding it are central to the life process itself.” Id. at 638. 

Finally, the Court considered whether HIV infection “substantially limits” the major life activity of 

reproduction. The Court found that Ms. Abbott’s condition substantially limited her ability to 

reproduce in two independent ways—by causing a significant risk that male sexual partners would 

be infected and by the significant risk that the disease will be transmitted to her child during 

pregnancy and childbirth. The Court ruled that theseeffects amounted to substantial limitations even 

though they did not make it totally impossible for a woman with HIV infection to reproduce, 

observing that “[t]he Act addresses substantial limitations on major life activities, not utter 

inabilities.” Id. at 641. 

In light of its conclusions regarding each of the elements of the definition, the Court affirmed the 

rulings of the district court and the Court of Appeals that Ms. Abbott’s HIV infection was a physical 

impairment that substantially limited a major life activity under ADA. Having ruled that Ms. 

Abbott’s condition met the statutory definition, the Court added that it did not need to address the 

question whether HIV infection is a per se disability under ADA. Designation as a per se disability 

means that every person who has the condition automatically meets the definition of a person with 

a disability and does not have to prove the effect on major life activities in her or his particular 

circumstances. Having announced that it was not going to reach the issue, however, the Court then 

devoted several pages of its opinion to a discussion of regulations, administrative interpretations, and 

prior court decisions supporting the Court’s conclusion that “HIV infection, even in the so-called 

asymptomatic phase, is an impairment which substantially limits the major life activity of 

reproduction.” Id. at 647. 

The Court next turned to the other question upon which it had granted an appeal—whetherthe courts 

should defer to a health care provider’s reasonable professional judgment that a procedure involves 

a direct threat to health or safety. The Court noted that this issue involves two separate inquiries: 

whether the courts should defer to Dr. Bragdon’s professional judgment, and whether Dr. Bragdon’s 

assessment of the situation was reasonable. The Court ruled that a health care professional’s view 

regarding the existence of a direct threat is not entitled to special deference and that courts should 

assess the objective reasonableness of the risk based upon the objective, scientific information 

available to members of the profession. Therefore, Dr. Bragdon’s “belief that a significant risk 

existed, even if maintained in good faith, would not relieve him from liability.” Id. at 649. 

Regarding the reasonableness of Dr. Bragdon’sbelief that treating Abbott would pose a direct threat 

8

in light of the available medical evidence, the Court found the record and briefings before it to be 

insufficient to allow it to resolve the issue. In particular, the Court had reservations regarding the 

conclusiveness of the 1993 CDC Dentistry Guidelines relied on by the Court of Appeals and 

regarding the significance of the American Dental Association’s 1991 Policy, in the absence of 

additional information on the manner in which the Association developed this Policy. The Court 

noted, however, that there was other evidence in the record that might support affirmance of the 

district court’s ruling, but that the record did not make clear which of these pieces of evidence was 

based on information that was available when Dr. Bragdon refused to treat Abbott in his office in 

September of 1994. Because the briefs and arguments to the Supreme Court did not focus on the 

question of the sufficiency of all the evidence submitted by the parties to the district court on the 

cross motions forsummary judgment, the Supreme Court felt constrained from trying to resolve such 

issues at this juncture. The Court concluded that the best course was to remand the case to the Court 

of Appeals to explore the issues more fully and to clarify the significance of the various pieces of 

evidence in the record. The Court noted that it was not foreclosing the possibility that the Court of 

Appeals would reach the same conclusion as it had earlier, and observed that there were “reasons 

to doubt whether [Bragdon] advanced evidence sufficient to raise a triable issue of fact on the 

significance of the risk.” Id. at 653. 

Accordingly, the Supreme Court affirmed the ruling of the Court of Appeals that Abbott’s HIV 

infection was a disability under ADA, and remanded the case to the Court of Appeals to allow it to 

reconsider the evidence on the direct threat issue. The ruling of the Supreme Court was by a 5-4 

margin, with Justice Kennedy delivering the majority decision in which he was joined by Justices 

Stevens, Souter, Ginsburg, and Breyer. In a concurring opinion, Justices Stevens and Breyer 

indicated that they would have preferred fully affirming the decision of the Court of Appeals and not 

remanding the case for further consideration of the direct threat issue. Justices Rehnquist, Scalia, 

Thomas, and O’Connor all concurred with the majority on the necessity of remanding the direct 

threat issue, but dissented from the majority on the determination that Ms. Abbott’s condition 

constitutes a disability under ADA. 

On remand, the First Circuit reconsidered its earlier summary judgment ruling on the issue of direct 

threat. Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998). It first considered whether Ms. Abbott had 

provided adequate evidence to warrant summary judgment in her favor, and, as the Supreme Court 

had directed, reexamined the evidentiary impact of the CDC Guidelines and the American Dental 

Association Policy. The Court of Appeals found that the 1993 Guidelines were an update of earlier 

versions that had explicitly declared that universal precautions were effective in preventing HIV 

infection and made other additional precautions unnecessary. Accordingly, the court determined that 

the Guidelines were competent evidence that public health authorities considered treatment of the 

kind that Ms. Abbott needed safe if performed using universal precautions. Similarly, the First 

Circuit reviewed the weight to be accorded the American Dental Association Policy and considered 

the “cornucopia of information” it received in supplemental briefings. Id. at 89. The court concluded 

that the Policy had been drafted by the Association’s scientific component, in contrast to ethical 

policies drafted by its ethics component. Thus, the Policy had an adequate scientific foundation and 

was appropriately relied on for summary judgment. The Court of Appeals found that the Guidelines 

and Policy were likely sufficient “in and of themselves,” to support summary judgment, and noted 

9

that they represented “only a fraction of the proof advanced to support Ms. Abbott’s motion.” Id. 

Having concluded upon reexamination that Ms. Abbott’s evidence was sufficient to support her 

motion for summary judgment, the First Circuit proceeded to reconsider the evidence of direct threat 

offered by Dr. Bragdon. The Supreme Court had directed the Court of Appeals to reexamine a 

particular piece of evidence that Dr. Bragdon had offered, to the effectthat CDC had identified seven 

“possible” cases of patient-to-dental-worker HIV transmission prior to the time that Dr. Bragdon 

refused to treat Ms. Abbott in his office, and to determine whether this evidence might provide 

sufficient proof of direct threat to avoid summary judgment on that issue. Citing articles in scientific 

journals published before Ms. Abbott came to Dr. Bragdon’s office, the First Circuit found that the 

CDC’s use of the word “possible” meant no more than that the CDC could not determine whether 

workers were infected occupationally, including the possibility that such workers had simply failed 

to present themselves for testing after being exposed to the virus at work. Id. at 90. The First Circuit 

also rejected Dr. Bragdon’s attemptsto extrapolate from reports of documented cases of occupational 

transmissions of HIV to health care workers outside the dental field, because of the absence of any 

showing that risks in dental and non-dental settings are comparable. Ultimately, the court found that 

each piece of evidence offered on behalf of Dr. Bragdon was, upon reexamination, “still ‘too 

speculative or too tangential (or, in some instances, both) to createa genuine issue of material fact.’” 

Id., quoting Abbott v. Bragdon, 107 F.3d 934, 948 (1st Cir. 1997). 

Based upon its review of the evidence and arguments, the First Circuit again affirmed the district 

court’s entry of summary judgment in favor of Ms. Abbott. Dr. Bragdon filed an appeal of the 

decision on remand to the Supreme Court. On May 24, 1999, the Supreme Court denied his petition 

for certiorari. Bragdon v. Abbott, 526 U.S. 1131 (1999). 

C. WRIGHT v. UNIVERSAL MARITIME SERVICE CORPORATION 

Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). 

In 1992, Ceasar Wright, a longshoreman in Charleston, South Carolina, injured his heel and back 

while working for the Stevens Shipping and Terminal Company. Mr. Wright was a member of Local 

1422 of the International Longshoreman’s Association (AFL-CIO). The Stevens company was 

represented by the South Carolina Stevedores Association. The union and the Stevedores 

Association had entered into a collective bargaining agreement that established an arbitration process 

for addressing matters under dispute between the union local and an employer. 

Mr. Wright sought compensation for his injuries from the Stevens company in the form of permanent 

disability under the Longshore and Harbor Workers’ Compensation Act. The claim was settled for 

$250,000 plus $10,000 in attorney’s fees. He was also able to obtain Social Security disability 

benefits. In 1995, Mr. Wright, cleared by his physician, returned to the hiring hall and asked for a 

referral for work. For nine days, in early 1995, Mr. Wright worked for four stevedore companies, 

without any reported complaints regarding his performance. Upon learning that Mr. Wright had 

previously settled a claim for permanent disability, however, the stevedore companies informed the 

10

union that they no longer would hire Mr. Wright because they regarded him as having been certified 

as permanently disabled and thus as no longer qualified to work as a longshoreman under the 

collective bargaining agreement. The union responded that the companies were misconstruing the 

collective bargaining agreement, that ADA entitled Mr. Wright to return to work if he could perform 

his duties, and that refusing him employment would constitute a “lockout” under the collective 

bargaining agreement. When Mr. Wright contacted the union and asked how he could get back to 

work in the face of the companies’ refusal to accept him for employment, the union suggested that 

he hire an attorney and file a claim under ADA. He did so, and filed charges of discrimination with 

the Equal Employment Opportunity Commission (EEOC) and the South Carolina State Human 

Affairs Commission. After receiving a “right to sue” letter from the EEOC, Mr. Wright filed suit in 

federal court against the Stevedores Association and six individual companies alleging that they had 

violated ADA by refusing him work. 

The trial court dismissed Mr. Wright’s case without prejudice on the ground that he had failed to 

pursue the arbitration procedure for resolving complaints provided by the collective bargaining 

agreement. Mr. Wright appealed and the Fourth Circuit affirmed. 

In a unanimous opinion delivered by Justice Scalia, the Supreme Court disagreed with the rulings 

of the lower courts. The Court characterized the Fourth Circuit’s ruling as involving two 

conclusions: (1) that the general arbitration provision in the collective bargaining agreement at issue 

in Wright was broad enough to encompass a statutory claim under ADA, and (2) that such a 

provision was enforceable. The Supreme Court observed that addressing the second issue would 

necessarily involve resolving the tension between two lines of cases. The first line of cases is 

represented by Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), in which the Court held that 

there can be no prospective waiver of an employee’s right under Title VII to a judicial forum for 

alleged discriminatory discharge, because “there can be no prospective waiver of an employee’s 

rights under Title VII.” Id. at 51. The second line of cases is represented by Gilmer v. 

Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), in which the Court ruled that a claim under the 

Age Discrimination in Employment Act could be subject to compulsory arbitration pursuant to a 

collective bargaining agreement provision. In Wright, however, the Court found it unnecessary to 

sort out these conflicting precedents about the validity of a union-negotiated waiver of statutory 

rights, because the Court found that on the facts before it no such waiver had occurred. 

The Court recognized that there is “a presumption of arbitratability” in collective bargaining 

agreements, Wright, 525 U.S. at 78, but ruled that the presumption extends only to interpreting or 

applying the terms of the collective bargaining agreement. Id. Mr. Wright’s cause of action, said the 

Court, arises not out of the labor contract but out of ADA. Id. Moreover, the Court found that any 

union-negotiated waiver of employees’ statutory right to a judicial forum for claims of employment 

discrimination, if valid at all, must be “clear and unmistakable.” Id. at 80. The Supreme Court could 

not find such a clear and unmistakable waiver in the facts before it, neither in the collective 

bargaining agreement nor in the Longshore Seniority Plan. Accordingly, the Court vacated the 

judgment of the Fourth Circuit and remanded the case for proceedings consistent with the Supreme 

Court’s opinion. 

11

D. CLEVELAND v. POLICY MANAGEMENT SYSTEMS CORPORATION 

Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). 

Carolyn Cleveland was employed by the Policy Management Systems Corporation to perform 

background checks on employees. In 1994, she suffered a stroke that resulted in loss of 

concentration, memory, and language skills. Three weeks after the stroke, Ms. Cleveland filed for 

Social Security Disability Insurance (SSDI) benefits with the Social Security Administration (SSA); 

in her application she stated that she was “disabled” and “unable to work.” About three months later, 

Ms. Cleveland’s condition had improved and she returned to work. She notified SSA that she had 

returned to work, and, noting that fact, the SSA denied her SSDI application. Three months after Ms. 

Cleveland returned to work, Policy Management Systems fired her. She thereafter asked SSA to 

reconsider its denial of her SSDI application, and stated that she had been terminated due to her 

condition and that she had “not been able to work since.” Later, in SSA administrative proceedings, 

Ms. Cleveland declared, “I am unable to work due to my disability.” In September, 1995, Ms. 

Cleveland filed an ADA lawsuit against Policy Management Systems alleging that the company had 

terminated her employment without reasonably accommodating herdisability.Aweek after she filed 

her ADA suit, the SSA awarded her SSDI benefits retroactive to the day of her stroke. 

The district court did not consider Ms. Cleveland’s ADA reasonable accommodation claim on the 

merits; instead, it granted summary judgment to the defendant. The district court viewed Ms. 

Cleveland’s applying for and receiving disability benefits as a concession on her part that she was 

totally disabled. And the court considered that fact as estopping her from proving an essential 

element of her ADA claim—that she could “perform the essential functions” of the job. 

42 U.S.C. § 12111(8). 

The Fifth Circuit affirmed the trial court’s grant of summary judgment. It reasoned that the 

application for or receipt of social security disability payments creates a rebuttable presumption that 

the individual is estopped from asserting that she or he is “qualified” under ADA. The Fifth Circuit 

indicated that the situations in which the presumption might be rebutted was “theoretically 

conceivable” and would involve “some limited and highly unusual set of circumstances.” Cleveland 

v. Policy Management Systems Corp., 120 F.3d 513, 517 (5th Cir. 1997). In Ms. Cleveland’s case, 

however, the Court of Appeals felt that because she had consistently represented to the SSA that she 

was totally disabled, she was judicially estopped from asserting that she was a qualified individual 

with a disability. 

The Supreme Court noted that there was disagreement among the circuit courts about the legal effect 

upon an ADA suit of the application for and receipt of disability benefits. 526 U.S. at 800. The Court 

explained that it had granted certiorari in the Cleveland case in an effort to settle this disagreement 

among the circuit courts. In a unanimous decision delivered by Justice Breyer, the Court vacated the 

Fifth Circuit’s decision and remanded the case for further proceedings. 

The Court observed that a representation that one has a total disability in seeking social security 

disability benefits often implies “a context-related legal conclusion, namely, ‘I am disabled for 

12

purposes of the Social Security Act.’” Id. at 802. The Court distinguished this type of statement from 

statements about purely factual matters, regarding which a person might be estopped from later 

contradicting in legal proceedings. The Court characterized the Fifth Circuit as having applied “a 

special judicial presumption” to prevent Ms. Cleveland from asserting what the Court of Appeals 

viewed as “two directly conflicting propositions, namely, ‘I am too disabled to work’ and ‘I am not 

too disabled to work.’” Id. In the Supreme Court’s view, however, ADA suits and disability benefits 

claims do not inherently conflict to the point that courts should apply such a special negative 

presumption. This is because “there are too many situations in which an SSDI claim and an ADA 

claim can comfortably exist side by side.” Id. at 802-03. 

TheCourt identified five different rationales for claimants’ making legitimate representations oftotal 

disability in seeking disability benefits while simultaneously pursuing ADA claims. One such 

rationale, applicable in Ms. Cleveland’s case, is that the Social Security Act does not take into 

account the possibility of reasonable accommodation, while this is an express statutory right under 

ADA. An allegation in an ADA suit that the plaintiff can perform her job with reasonable 

accommodation may, therefore, be consistent with an SSDI claim that the plaintiff could not perform 

her job or other jobs without such accommodation. Second, the Court found that the Social Security 

Administration administers the SSDI through a five-step procedure that embodies a set of 

presumptions that grow out of administrative efficiency in managing the program rather than 

accounting for the details of each individual’s ability to perform particular jobs. One of the steps in 

the SSDI procedure (accounting for about 60 percent of SSDI awards) merely compares the 

applicant’s condition with a list of impairments and automatically, without any additional evidence, 

accepts individuals with one of the listed conditions as permanently disabled and entitled to 

disability benefits. Thus, a person can qualify for SSDI and still be able to perform the essential 

function of her or his job. Third, the Court observed that the Social Security Administration 

sometimes grants benefits to people who are employed, including under trial work programs; under 

some such programs, individuals can continue to receive benefits for up to 24 months, despite 

working at a job. Fourth, the Court noted that the nature of a person’s disability can change over 

time, so that a statement about disability at the time of applying for SSDI benefits may not reflect 

the person’s capacities at the time of the employment decision subject to an ADA complaint. Fifth, 

the Court declared that for individuals who have applied for but not yet been awarded disability 

benefits, the inconsistency in statements in SSDI and ADA claims is of the type normally permitted 

in our legal system under the theory that parties are allowed to assert legal theories whether or not 

they are consistent. The Court quoted Federal Rule of Civil Procedure 8(a)(e) which permits parties 

to “set forth two or more statements of a claim or defense alternately or hypothetically,” and to “state 

as many separate claims or defenses as the party has regardless of consistency.” Id. at 805. 

In light of these examples, the Court found it inappropriate to apply a special legal presumption that 

would permit applicants for or recipients of SSDI benefits to pursue ADA claims only in “some 

limited and highly unusual set of circumstances.” Id., quoting 120 F.3d at 517. The proper standard, 

the Supreme Court ruled, is to require an ADA plaintiff not to rebut a presumption of estoppel but 

instead only to “proffer a sufficient explanation” of the apparent contradiction that arises out of an 

earlier SSDI total disability assertion. 526 U.S.at 806. To defeat summary judgment, a plaintiff must 

offer an explanation that would permit a reasonable conclusion that, assuming the earlier assertion 

13

was true or asserted by the plaintiff in good faith, the plaintiff would nonetheless be able to perform 

the essential functions of the job. The Court found that Ms. Cleveland had explained the discrepancy 

between her SSDI assertions and her ADA allegations by statingthat the SSDI statements were made 

in a forum where reasonable accommodations were not considered, and that her SSDI statements 

were accurate if examined in the time period in which they were made. Accordingly, the Court 

vacated the judgment of the Fifth Circuit and remanded the case to permit the parties to present or 

contest these explanations before the trial court. 

E. SUTTON v. UNITED AIRLINES 

Sutton v. United Airlines, 527 U.S. 471 (1999). 

In 1992, twin sisters, Karen Sutton and Kimberly Hinton, applied to United Airlines for jobs as 

commercial airline pilots. They met United’s basic age, education, and experience requirements, and 

had obtained the appropriate Federal Aviation Administration pilot certifications. Both of the 

women, however, were severely nearsighted (myopic). Their visual acuity tested at 20/200 or worse 

in the right eye and 20/400 or worse in the left eye without corrective lenses; with lenses, their visual 

acuity improved to 20/20 or better. With glasses or contact lenses, therefore, their vision was 

functionally the same as people without myopia, but without glasses or contacts, they could not see 

well enough to drive or watch television. After United received their applications for employment, 

it invited the sisters to an interview and flight simulator tests. During their interviews, however, 

United informed each of the women that a mistake had been made in inviting her to interview 

because she did not meet United’s minimum vision requirement of uncorrected visual acuity of 

20/100 or better. At that point, United terminated the job interviews. 

After pursuing complaint procedureswith theEqualEmploymentOpportunity Commission (EEOC), 

the sisters filed an ADA suit in federal court alleging that United Airlines had violated ADA by 

discriminating against them on the basis of their disability, or, alternatively, that United 

discriminated against them because it regarded them as having a disability. The federal district court 

dismissed their complaint for failure to state a claim upon which relief could be granted, on the 

grounds that they had not shown that they had a disability under ADA, and the Court of Appeals for 

the Tenth Circuit affirmed the district court’s judgment. Sutton v. United Airlines, 130 F.3d 893 

(10th Cir. 1997). Both of the lower courts ruled that the sisters were not actually substantially limited 

in any major life activity because they could fully correct their visual impairments. The courts also 

determined that they had not made allegations sufficient to support their claim that they were 

“regarded” by United as having an impairment that substantially limits a major life activity, as they 

had alleged only that United regarded them as unable to satisfy the requirements of a particular job, 

global airline pilot, and not that it regarded them as foreclosed more generally in the activity of 

employment. 

The Supreme Court noted that the Tenth Circuit’s ruling that the determination of disability should 

take mitigating measures into account was “in tension with the decisions of other Courts of 

Appeals.” Sutton, 527 U.S. at 477. The Court, however, affirmed the decision of the Tenth Circuit 

14

in Sutton, by a vote of 7 to 2, with Justice O’Connor writing the Court’s opinion for the majority. 

The Supreme Court began its analysis of the case with the definition of disability in ADA: 

(A) a physical or mental impairment that substantially limits one or more of the major life 

activities of such individual; 

(B) a record of such an impairment; or 

(C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). 

“Accordingly,” the Court observed, “to fall within this definition one must have an actual disability 

(subsection (A)), have a record of a disability (subsection (B)), or be regarded as having one 

(subsection (C)).” 527 U.S. at 478. 

ADA gives the EEOC the responsibility for issuing regulations to carry out the employment 

requirementsfound in Title I of ADA. Id., § 12116. Because the definitions section of ADA precedes 

the substantive Titles (I-V) of ADA, the Court suggested that “no agency has been delegated 

authority to interpret the term ‘disability.’” 527 U.S. at 479. However, becauseboth parties in Sutton 

accepted the EEOC regulations defining “disability” as valid, and because the Court determined that 

the validity of the regulations was not necessary to decide the case, it declined to determine what 

deference, if any, should be accorded these regulations. The Court also noted that EEOC had issued 

an “Interpretive Guidance” providing that “[t]he determination of whether an individual is 

substantially limited in a major life activity must be made on a case by case basis, without regard 

to mitigating measures such as medicines, or assistive or prosthetic devices.” 29 C.F.R. pt.1630, 

App. § 1630.2(j) (1998) (describing § 1630.2(j)). The Court again declined to determine how much 

deference was due to the Interpretive Guidance, but in this instance did so because it found that 

EEOC’s position on mitigating measures was “an impermissible interpretation of ADA.” 527 U.S. 

at 482. 

The Court viewed three provisions of ADA as supporting the conclusion that mitigating measures 

should be considered when determining whether a disability exists. First, because the phrase 

“substantially limits” appears in the present tense in ADA definition of disability, the Court 

construed it as requiring a present substantial limitation, not a potential or hypothetical one: “A 

‘disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it 

‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken.” Id. 

Second, the Court noted that the definition of disability under ADA requires an individualized 

inquiry, while evaluating impairments in their uncorrected or unmitigated state would, in the Court’s 

view, require courts and employers to speculate about a person’s condition and to make 

determinations based on general information about how an uncorrected impairment usually affects 

individuals, rather than on the individual’s actual condition. This “would create a system in which 

persons often must be treated as members of a group of people with similar impairments, rather than 

as individuals.” Id. at 483-84. The Court added that the failure to focus on individualized 

circumstances of actual impairment would mean courts and employers could not consider negative 

side effects of mitigating measures on a particular individual, even if those side effects were very 

severe. 

15

Finally, the Court relied heavily on the statement in ADA findings that “some 43,000,000 Americans 

have one or more physical or mental disabilities,” 42 U.S.C. § 12101(a)(1), and concluded that the 

finding means that Congress did not intend to have ADA protect all individuals whose uncorrected 

conditions amount to disabilities. The Court noted that the version of ADA introduced in Congress 

in 1988 had included a figure of 36 million persons with disabilities, an estimate drawn from the 

NCD’s report Toward Independence (1986). NCD had declared that 35 or 36 million was “the most 

commonly quoted estimate” of the number of people with disabilities in the United States, and had 

contrasted it with a “health conditions approach” that looks at all conditions that impair the health 

or normal functional abilities of an individual and a “work disability” approach that focuses on 

individuals self-reporting of limitations on their ability to work. Id. at 3. The Supreme Court 

concluded that the 36 million figure more closelyreflects a workdisabilities approach than the health 

conditions approach to defining disability. NCD’s 1988 report On the Threshold of Independence 

had quoted a Census Bureau study finding that 37.3 million individuals have difficulty performing 

one or more basic physical activities such as seeing, hearing, speaking, walking, using stairs, lifting 

or carrying, getting around outside, getting around inside, and getting into or out of bed. Id. at 9. The 

Court speculated that the 43 million figure included in the 1989 versions of ADA legislation may 

have resulted from “an effort to include in the findings those who were excluded from the National 

Council figure.” 527 U.S. at 486. 

Regardless of the exact source of the 43 million figure, however, the Court found that it could not 

include persons whose impairments are corrected by medication or other devices. The Court 

reasoned that the magnitude of the figure aligned it with estimates of disability based on what the 

Court called “a functional approach to determining disability” as opposed to “nonfunctional 

approaches to defining disability” that produce significantly larger numbers. Id. at 486-87. Thus, the 

Court declared, “had Congress intended to include all persons with corrected physical limitations 

among those covered by the Act, it undoubtedly would have cited a much higher number of disabled 

persons in the findings.” Id. at 487. The Court recognized that people who make use of corrective 

devices may still have a disability because the device does not correct the condition sufficiently to 

prevent a substantial limitation on a major life activity. Moreover, an individual whose impairment 

is effectively corrected may nonetheless be regarded as disabled by a covered entity, and thus 

disabled under subsection (C)—the “regarded as” prong—of the definition. But such persons, ruled 

the Court, do not have an impairment that is actually substantially limiting. 

Having decided that determinations of disability under ADA are to take corrective measures into 

account, the Supreme Court agreed with the lower courts that Karen Sutton and Kimberly Hinton 

had not stated a valid claim that they were substantially limited in any major life activity. 

The remaining question was whether the sisters had stated a valid claim that they were “regarded as” 

having a disability within the meaning of subsection (C) of the definition of disability in ADA. 42 

U.S.C. § 12102(2)(C). The Court suggested that there are two apparent ways in which individuals 

may be “regarded as” having a disability: (1) a covered entity may mistakenly believe that a person 

has an impairment that substantially limits a major life activity, or (2) a covered entity may 

mistakenly believe that an actual, nonlimiting impairment substantially limits a major life activity. 

Both situations entail acovered entity entertaining misperceptions, eitherthat there is a substantially 

16

limiting impairment when there is not or that an impairment is substantially limiting, when in fact 

it is not. Such misperceptions, the Court noted, often result from stereotypic assumptions not truly 

indicative of individual ability. 

There was no dispute in Sutton that the plaintiff sisters had a physical impairment, and they 

contended that United Airlines mistakenly believed their impairment substantially limited them in 

the major life activity of working and that it had a vision requirement based on myth and stereotype. 

The Court ruled, however, that United’s having a vision requirement did not establish that it 

regarded the sisters as substantially limited in the major life activity of working. The Court 

interpreted ADA as allowing employers to prefer some physical attributes over others and to 

establish physical criteria, so long as the employer does not make an employment decision based on 

a physical or mental impairment, real orimagined, that the employer regards as substantially limiting 

a major life activity. Consistent with EEOC regulations, the Court held that when the major life 

activity under consideration is that of working, the statutory phrase “substantially limits” requires, 

“at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” 527 U.S. at 

491; see 29 C.F.R. § 1630.2(j)(3)(i). 

The Supreme Court suggested that there may be “some conceptual difficulty” in ADA’s inclusion 

of working as a major life activity (a difficulty the Court illuminates by quoting a somewhat 

confused statement of the Solicitor General of the United States during oral argument in a Section 

504 case, School Bd. of Nassau Co. v. Arline), but the Court found it unnecessary to determine the 

validity of the relevant EEOC regulations because the parties in Sutton accepted that “major life 

activities” includes working. 527 U.S. at 492. In these circumstances, the Court assumed without 

deciding that working is a major life activity and that the EEOC regulations interpreting the term 

“substantially limits” are reasonable. Accordingly, for purposes of this case, the Court accepted and 

applied the EEOC regulatory declaration that “[t]he inability to perform a single, particular job does 

not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 

1630.2(j)(3)(i)(1998). The Courtfound that the plaintiffsisters’ allegationthat United regarded their 

poor vision as precluding them from positions as a “global airlinepilot” was not sufficient to support 

the claim that United regarded them as having a substantially limiting impairment. The Court 

indicated that a number of other positions utilizing the sisters’ skills, such as regional pilot and pilot 

instructor, were available to them, and quoted from a statement in the EEOC’s Interpretive Guidance 

that “an individual who cannot be a commercial airline pilot because of a minor vision impairment, 

but who can be a commercial airline co-pilot or a pilot for a courier service, would not be 

substantially limited in the major life activity of working.” 527 U.S. at 493, quoting 29 C.F.R. pt. 

1630, App. § 1630.2 (1998). 

Because the Court found that Karen Sutton and Kimberly Hinton had not claimed that United’s 

vision requirement reflected a belief that their vision substantially limits them, the Supreme Court 

agreed with, and affirmed, the decision of the Court of Appeals affirming the dismissal of their claim 

that they were regarded as having a disability. 

Justice Ginsburg filed a concurring opinion in which she agreed with the majority that the actual 

disability prong of ADA definition of disability “does not reach the legions of people with 

17

correctable disabilities.” 527 U.S. at 494. She explained that she found the “strongest clues” to 

congressional intent on this issue in the 43 million figure and the finding that “individuals with 

disabilities are a discrete and insular minority who have been ... subjected to a history of purposeful 

unequal treatment, and relegated to a position of political powerlessness in our society.” 42 U.S.C. 

§ 12101(a)(7). She believed that these declarations are inconsistent with “the enormously embracing 

definition of disability” that would result from including correctable conditions. 527 U.S. at 494. 

Justices Stevens and Breyer dissented. JusticeStevens, in an opinion joined by JusticeBreyer, wrote 

that the application of customary tools of statutory construction make it “quite clear” that the 

existence of disability should focus on an individual’s condition “without regard to mitigation that 

has resulted from rehabilitation, self-improvement, prosthetic devices, or medication.” Id. at 495. 

He noted that this was the view of eight of the nine circuit courts to address the issue, and of all three 

of the executive agencies that had issued regulations or interpretive bulletins construing ADA 

definition. Examining the text of ADA definition of disability, Justice Stevens argued that the three 

parts of the definition do not identify mutually exclusive, discrete categories, but, rather, furnish 

three overlapping formulas aimed at ensuring that individuals who now have, or ever had, a 

substantially limiting impairment are protected. He cites the example of a person who has lost a 

limb, but who, with prostheses, can perform all major life activities. Under the majority’s reasoning, 

he argues, persons with such conditions would not be disabled under ADA, though he believes the 

sweep of the three-pronged definition makes it clear that Congress intended the Act to cover such 

persons. 

In Justice Stevens’ view, the three parts of the definition should be read together not to focus solely 

on current functional limitations, but instead to inquire whether any present or past impairment 

substantially limits, or did limit, the individual’s performance of major life activities. Such a reading 

would avoid “the counterintuitive conclusion that ADA’s safeguards vanish when individuals make 

themselves more employable by ascertainingwaysto overcome their physical or mental limitations.” 

Id. at 499. Justice Stevens contended that any ambiguity about this conclusion is removed by looking 

at ADA’s legislative history, and he quoted from several statements in ADA committee reports 

indicating that determinations of disability should be made without regard to mitigating measures. 

He noted that the EEOC, the Department of Justice, and the Department of Transportation had all 

reached the same conclusion. 

Justice Stevens clarified that the question raised in the Sutton appeal was not whether the sisters were 

qualified to be pilots, nor whether their condition might endanger passengers and crew, but only the 

threshold question whether they are protected by ADA. He believed it was “quite wrong” for the 

majority to restrict the coverage of the Act, when remedial legislation such as ADA should be 

construed broadly to effectuate its purposes. Id. at 504. He considered it appropriate to require 

United to clarify why having, for example, 20/100 uncorrected vision or better is a valid job 

requirement. He noted that the sisters’ condition of having 20/200 vision in the better eye is a 

significant hindrance that precludes a person from driving, shopping in a public store, or viewing 

a computer screen from a reasonable distance. To the fear that considering as “disabilities” 

impairments that may be mitigated by measures as ordinary and expedient as wearing eyeglasses 

might cause a flood of litigation, Justice Stevens responded that whether or not workers wear glasses 

18

is a matter of complete indifference to most employers and thus will not give rise to legal actions. 

Moreover, he pointed out that all individuals can already file employment discrimination claims 

based on their race, sex, or religion, and—provided they are at least 40 years old—their age, and yet 

this has never been found to be a reason to restrict classes of antidiscrimination coverage. To the 

extent that the Court is concerned that employers will be required to answer in litigation for every 

employment practice that draws distinctions based on physical attributes, Justice Stevens suggested 

that such problems should be addressed in the context of employers’ affirmative defenses, not of the 

scope of applicants or employees protected by the Act. 

Justice Stevens contended that, in the end, the majority is “left only with its tenacious grip on 

Congress’ finding that ‘some 43,000,000 Americans have one or more physical or mental 

disabilities.’” Id. at 511. He argued that the majority’s interpretation of this figure will have “the 

perverse effect of denying coverage for a sizeable portion of the core group of 43 million.” Id. at 

512. And he asserted that 43 million cannot be a fixed cap, since Congress included the “record of” 

and “regarded as” categories in the definition, with the expectation that the Act would protect 

individuals who do not have “actual” disabilities and therefore are not counted in the number. 

While joining in Justice Stevens’ dissenting opinion, Justice Breyer wrote separately to suggest that 

if the broad interpretation of the definition of disability led to too many lawsuits that ultimately 

proved without merit or drew time and attention away from those whom Congress clearly sought to 

protect, the EEOC could remedy this problem through regulations drawing finer definitional lines, 

thereby preventing the overly broad extension of the statute that the majority feared. 

F. MURPHY v. UNITED PARCEL SERVICE 

Murphy v. United Parcel Service, 527 U.S. 516 (1999). 

In August, 1994, United Parcel Service (UPS) hired Vaughn L. Murphy as a mechanic. The job 

required Mr. Murphy to drive commercial motor vehicles. The Department of Transportation (DOT) 

has established health requirements for drivers of commercial vehicles. See 49 C.F.R. § 391.41(a) 

(1998). Among other requirements, the DOT regulations mandate that the driver of a commercial 

motor vehicle in interstate commerce have “no current clinical diagnosis of high blood pressure 

likely to interfere with his/her ability to operate a commercial vehicle safely.” Id., § 391.41(b)(6). 

Mr. Murphy had a history of hypertension (high blood pressure) dating from an initial diagnosis 

when he was 10 years old. With medication, however, Mr. Murphy’s condition was controlled so 

that he could function normally without any significant restrictions on his activities, except that he 

was restricted from lifting heavy objects. At the time UPS hired him, Mr. Murphy’s blood pressure 

was too high for Mr. Murphy to qualify for DOT health certification, but, due to an error, he was 

erroneously granted certification and started working for UPS. About a month later, a UPS medical 

supervisor discovered the error while reviewing Murphy’s medical files and requested that he have 

his blood pressure retested. Upon retesting, Murphy’s blood pressure, at 160/102 and 164/104, was 

not low enough to qualify him for the 1 year certification that he had incorrectly been issued, but it 

was sufficient to qualify him for an optional temporary DOT health certification. UPS fired Mr. 

19

Murphy because it believed that his blood pressure exceeded DOT’s requirement, and UPS did not 

allow him to attempt to obtain the optional temporary certification. 

Mr. Murphy filed suit against UPS under Title I of ADA. The federal district court granted UPS’s 

motion for summary judgment on the grounds that Mr. Murphy was neither “disabled” nor “regarded 

as” disabled under ADA. 946 F.Supp., at 881-82. The Court of Appeals for the Tenth Circuit 

affirmed the district court’s judgment. Both the district court and the Court of Appeals declared that 

the determination whether Mr. Murphy had a disability should be based on an evaluation of his 

condition in its medicated state, and both found that when he was under medication Mr. Murphy 

functioned normally. 

By a vote of 7 to 2, the Supreme Court affirmed the decisions of the lower courts, largely based on 

the decision it issued on the same day in Sutton v. United Airlines, 527 U.S. 471 (1999). The first 

question the Court addressed in Murphy was whether the determination of disability should be made 

with reference to the mitigating measures Mr. Murphy employed, a question that it had already 

answered in the affirmative in Sutton. The Court of Appeals had concluded that, when medicated, 

Mr. Murphy’s high blood pressure did not substantially limit him in any major life activity, a 

conclusion that Mr. Murphy had not challenged on appeal. Therefore, the Supreme Court ruled that 

the grant of summary judgment in UPS’s favor on the claim that Mr. Murphy was substantially 

limited in one or more major life activities, and thus disabled under ADA, was correct. 

The other issue the Supreme Court considered was whetherUPS had regarded Mr. Murphy as having 

a disability. Mr. Murphy argued that UPS regarded his hypertension as substantially limiting him 

in the major life activity of working, even though in fact it did not. The Court viewed this issue as 

again having been largely resolved by its opinion in Sutton. As in Sutton, the Court assumed for the 

purposes of argument that the Equal Employment Opportunity Commission (EEOC) regulations 

regarding the disability determination are valid, and quoted the EEOC definition of “substantially 

limits” in regard to the major life activity of working: “significantly restricted in the ability to 

perform either a class of jobs or a broad range of jobs in various classes as compared to the average 

person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i) (1998). The 

Court also noted EEOC’s clarification that “[T]he inability to perform a single, particular job does 

not constitute a substantial limitation in the major life activity of working.” Id. Applying these 

standards, the Court found that evidence that UPS regarded Mr. Murphy as unable to meet the DOT 

regulations was not sufficient to create a genuine issue as to whether he was regarded as unable to 

perform a class of jobs utilizing his skills. At most, Mr. Murphy was regarded as unable to perform 

the job of mechanic only when that job required driving a commercial motor vehicle, and otherwise 

was generally employable as a mechanic. Consequently, the Court found that Mr. Murphy had failed 

to show that he was regarded as unable to perform a class of jobs, but had demonstrated only that 

he was regarded as unable to perform a particular job. The Supreme Court found this evidence 

insufficient, as a matter of law, to prove that he was regarded as substantially limited in the major 

life activity of working. 

Justice Stevens, joined by Justice Breyer, dissented from the Court’s decision, for reasons he had 

explained in his dissenting opinion in Sutton v. United Airlines, 527 U.S. at 495. In his view, Mr. 

20

Murphy had a “disability” under ADA because his hypertension—in its unmedicated 

state—“substantially limited” his ability to perform several major life activities, and would likely 

cause him to be hospitalized if he was not medicated. Indeed, Justice Stevens viewed Mr. Murphy’s 

situation even more clearcut than that considered in Sutton: “Severe hypertension,” in his view, 

“easily falls within ADA’s nucleus of covered impairments.” 527 U.S. at 525. 

G. ALBERTSON’S, INC. v. KIRKINGBURG 

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 

In August 1990, Albertson’s, Inc., a grocery-store chain, hired Hallie Kirkingburg as a truckdriver 

to be based at its warehouse in Portland, Oregon. Mr. Kirkingburg had more than ten years driving 

experience and Albertson’s’ transportation manager found that he performed well on a road test. Mr. 

Kirkingburg had an uncorrectable vision condition (amblyopia), that involves weakened vision in 

one eye—20/200 vision in the left eye in Kirkingburg’s case—so that the individual in effect sees 

only with the other eye. When a person uses only one eye to see, the condition is referred to as 

“monocular” vision. Before he started working, Albertson’s required Kirkingburg to be examined 

by a doctor to see if he met federal standards for commercial truckdrivers. These standards, issued 

by the United States Department of Transportation (DOT), include a “basic vision” requirement that 

corrected distant visual acuity be at least 20/40 in each eye and distant binocular (two-eye) acuity 

be at least 20/40. Despite Kirkingburg’s weak left eye, the doctor who examined him certified, 

erroneously, that he met the DOT basic vision standard. 

In December 1991, Kirkingburg took a leave of absence after injuring himself on the job. 

Albertson’s required returning employees to undergo a physical examination, so, in November 1992, 

Kirkingburg went for a physical. This time, the examining physician correctly assessed 

Kirkingburg’s vision and found that his eyesight did not meet the basic DOT standards. Either the 

physician, or his nurse, told Kirkingburg that he would have to obtain a waiver of the basic vision 

standards. DOT had a process for giving certification to applicants who had three years of recent 

experience driving a commercial vehicle with a clean driving record (as defined by DOT). A waiver 

applicant had to agree to have his or her vision checked annually, and to submit reports regarding 

his or her driving experience to DOT’s Federal Highway Administration. Mr. Kirkingburg applied 

for a waiver, but while his application was pending, Albertson’s fired him from his job as truckdriver 

because he could not meet the basic DOT vision standard. Ultimately, Mr. Kirkingburg received a 

DOT waiver, but Albertson’s refused to rehire him. Mr. Kirkingburg brought suit alleging that 

Albertson’s violated ADA by firing him. 

The district court granted summary judgment for Albertson’s, ruling that the company had 

reasonably concluded that Mr. Kirkingburg was not qualified without an accommodation because 

he could not meet the basic DOT vision standards, and that Albertson’s was not required, as a 

reasonable accommodation, to give him time to get a DOT waiver. The Court of Appeals for the 

Ninth Circuit reversed the district court’s decision. The Court of Appeals held that Albertson’s could 

not use the DOT vision standard as the justification for its vision requirement and yet disregard the 

21

waiver program which was a legitimate part of the DOT program. Albertson’s argued for the first 

time before the Ninth Circuit that it was entitled to summary judgment because Mr. Kirkingburg did 

not have a disability within the meaning of ADA. The Court of Appeals rejected this contention 

because it concluded that Mr. Kirkingburg had presented evidence that his vision was effectively 

monocular, and thus that the manner in which he sees differs significantly from the manner in which 

most people see. 

The Supreme Court granted review of both the question whether Mr. Kirkingburg had a disability 

and whether he was qualified. In a unanimous ruling, the Court reversed the judgment of the Ninth 

Circuit. Because the Supreme Court decided that Kirkingburg was not “qualified” under ADA, the 

Court did not have to resolve the issue of whether he was an individual with a disability. The Court 

decided to address the issue of standards for determining the existence of disability, however, 

because of what it called “three missteps the Ninth Circuit made” in its discussion of the issue. 527 

U.S. at 562. Although Mr. Kirkingburg had originally alleged both that he had a disability and that 

Albertson’s had regarded him as having a disability, the Supreme Court discussed only the issue of 

actual disability, because Kirkingburg did not raise the “regarded as” issue in his petition to the 

Supreme Court. In assessing whether Mr. Kirkingburg’s vision impairment substantially limited the 

major life activity of seeing, the Court considered the Ninth Circuit as having been “too quick to find 

a disability.” Id. at 564. The Supreme Court ruled that the Court of Appeals had accepted as 

sufficient to establish disability Mr. Kirkingburg’s evidence that the manner in which he sees differs 

significantly from the manner in which most people see. In the Supreme Court’s view, the Ninth 

Circuit had accepted a mere difference in manner instead of requiring a showing of significant 

restriction in order to establish substantial limitation. 

Second, the Court found that the Ninth Circuit had not taken sufficient account of evidence that Mr. 

Kirkingburg had developed subconscious mechanisms for compensating and coping with his visual 

impairment, suggesting that the Court of Appeals believed that in gauging whether an individual has 

a disability a court need not consider the individual’s ability to compensate for the impairment. The 

Supreme Court found this approach to be inconsistent with its ruling in Sutton v. United Airlines, 

supra, that mitigating measures must be taken into account in judging whether an individual has a 

disability, and the Court saw no “basis for distinguishing between measures undertaken with 

artificial aids, like medications and devices, and measures undertaken, whether consciously or not, 

with the body’s own systems.” 527 U.S. at 565-66. 

Third, the Court observed that the Ninth Circuit did not sufficiently heed the statutory obligation to 

determine the existence of disabilities on a case-by-case basis. While recognizing that there may be 

some impairments that invariably cause asubstantial limitation of a major life activity, the Court did 

not consider monocularity to be such a condition, because people with monocularity may have 

variations in the degree of visual acuity in the weaker eye, in the age at which they suffered their 

vision loss, in the extent of their compensating adjustments in visual techniques, and in the ultimate 

scope of the restrictions on their visual abilities. The Court of Appeals did not identify the degree 

of loss suffered by Mr. Kirkingburg, and the Supreme Court could find no evidence in the record 

specifying the extent of his visual restrictions. The Court declared that it was not suggesting that 

monocular individuals have an onerous burden in trying to show that they have a disability; indeed, 

22

it recognized that “people with monocular vision ‘ordinarily’ will meet the Act’s definition of 

disability.” Id. at 567. But it held that, as with other persons who seek ADA’s protection, individuals 

with monocular vision must offer evidence that the extent of the limitation, as in loss of depth 

perception and visual field, is substantial in their personal situation. 

The Court then turned to Albertson’s’ primary contention—that Mr. Kirkingburg was not qualified. 

Mr. Kirkingburg and the United States argued that in applying a qualification standard, grounded 

in safety concerns, that screens out applicants with a disability, Albertson’s was required to 

demonstrate that the standard was “job-related and consistent with business necessity, and ... 

performance cannot be accomplished by reasonable accommodation ....,” and that the standard was 

necessary to prevent “a direct threat to the health or safety of other individuals in the workplace,” 

42 U.S.C. § 12113(a), 12113(b). 

The Court found it significant that Albertson’s was applying a job qualification imposed upon it by 

federal law rather than a criterion it had devised. The Court declared that Albertson’s had both a 

“right” and an “unconditional obligation” to follow the DOT commercial truckdriver regulations. 

Id. at 570. The Court of Appeals had considered the regulatory provisions for the waiver program 

in conjunction with the basic visual acuity provision. The Supreme Court ruled, however, that the 

regulations establishing the waiver program did not modify the general visual acuity standards, and 

that DOT had no evidentiary basis for concluding that the pre-existing standards could be lowered 

consistent with public safety. The Court found that DOT had developed the waiver scheme as a 

means of obtaining data to be considered in exploring whether the existing vision standards should 

be revised. As DOT was giving waivers solely to collect information, “[t]he waiver program was 

simply an experiment with safety” and did not purport to modify the substantive content of the 

general acuity regulation. 

The Court ruled that the DOT regulation does not require employers of commercial drivers to 

participate in the waiver program, so that Albertson’s was free to decline to do so unless ADA is 

“read to require such an employer to defend a decision to decline the experiment.” Id. at 577. In the 

Court’s view, such an interpretation would require employers to justify a safety regulation issued 

by the Government, to “reinvent the Government’s own wheel,” on a case-by-case basis. Id. As 

Congress had enacted ADA before there was any waiver program, the Court ruled that it was not 

credible that Congress intended that employers choosing to abide by the DOT’s visual acuity 

regulation would be required to defend the regulation’s application in the face of an experimental 

waiver program. Accordingly, the Court reversed the judgment of the Ninth Circuit. 

Justice Thomas wrote a concurring opinion. While agreeing with the majority that Albertson’s was 

legally entitled to apply the DOT visual acuity standard, he wished to add that the regulation applied 

to Mr. Kirkingburg as well as to Albertson’s and it operated to render him not qualified to be a 

commercial truckdriver as a matter of law. He added that requiring Albertson’s to permit Mr. 

Kirkingburg to obtain a waiver as an accommodation would have been “unreasonable.” Id. at 580. 

Justices Stevens and Breyer did not join in the portion of the Court’s opinion (part II) that discussed 

the definition of disability and the standards for determining whether Mr. Kirkingburg’s condition 

qualified as a disability. Their reasons for not joining that part of the opinion presumably were 

23

related to their rationale for dissenting in the Sutton and Murphy cases, but they did not write 

separately in Kirkingburg to explain their thinking. 

H. OLMSTEAD v. L.C. 

Olmstead v. L.C., 527 U.S. 581 (1999). 

In 1992, L.C., a woman with mental retardation and diagnosed as having schizophrenia, was 

voluntarily admitted to the Georgia Regional Hospital at Atlanta (GRHA), a state psychiatric 

hospital. A year later, L.C.’s treatment team at the hospital determined that her psychiatric condition 

had stabilized, and that her needs could be met appropriately in one of the community-based 

programs supported by the State of Georgia. This evaluation did not result, however, in any change 

in her placement. In 1995, L.C. filed suit in federal court against the hospital’s superintendent, the 

Commissioner of the Georgia Department of Human Resources, and the executive director of a 

county regional board, challenging L.C.’s continued confinement in a segregated environment. She 

alleged that the failure to place her in a community-based program, once her treating professionals 

determined that such placement was appropriate, violated Title II of ADA. To remedy this ADA 

violation, L.C. asked that the State place her in a community care residential program, and provide 

her treatment with the ultimate goal of integrating her into the mainstream of society. In January 

1996, E.W., a woman with mental retardation and diagnosed as having a personality disorder, 

entered the case as an additional plaintiff. She had been voluntarily admitted to GRHA in February 

1995, and remained there even after her treating psychiatrist concluded that she could be treated 

appropriately in a community-based setting. 

While the lawsuit and appeals were still pending, both women were eventually transferred to 

community-based treatment programs. The courts elected, however, to decide the issues raised in 

the case, because multiple institutional placements was a problem that is “capable of repetition, yet 

evading review”—an exception to the situations in which courts dismiss cases as “moot.” The State 

could keep such an issue from ever being resolved by the courts by simply transferring the plaintiffs 

to community-based facilities whenever such a lawsuit is filed, so courts are authorized to decide 

such issues despite the subsequent changes in placement. 

The district court granted partial summary judgment in favor of L.C. and E.W., ruling that the State’s 

failure to place the two women in an appropriate community-based treatment program violated Title 

II of ADA. The district court rejected the State’s argument that inadequate funding, not 

discrimination against L.C. and E.W. by reason of their disabilities, accounted for their retention at 

GRHA. The district court ruled that under Title II unnecessary institutional segregation of 

individuals with disabilities constitutes discrimination per se, that cannot be justified by a lack of 

funding. The district court also rejected the State’s contention that requiring immediate transfers in 

cases of this type would “fundamentally alter” the State’s activity, a defense to obligations imposed 

under Title II. The court observed that existing state programs provided community-based treatment 

of the kind for which L.C. and E.W. qualified, and community-based service programs would cost 

considerably less than maintaining them in an institution. 

24

The Court of Appeals for the Eleventh Circuit affirmed the judgment of the district court, but 

remanded for reassessment of the State’s cost-based defense. The appeals court directed the lower 

court to consider “whether the additional expenditures necessary to treat L.C. and E.W. in 

community-based care would be unreasonable given the demands of the State’s mental health 

budget.” 138 F.3d at 905. 

The Supreme Court viewed the central issue in the case as whether the prohibition of discrimination 

in ADA may require placement of persons with mental disabilities in community settings rather than 

in institutions. The Court’s answer was “a qualified yes.” 527 U.S. at 587. Six Justices agreed that 

Title II’s integration provision requires states to place individuals with mental disabilities in 

community-based facilities in some circumstances. No single opinion in its entirety, however, 

garnered the votes of a majority. Justice Ginsburg delivered the judgment of the Court, and authored 

the opinion of the Court in three of its parts, in which she was joined by Justices Stevens, O’Connor, 

Souter, and Breyer. The fourth part of Justice Ginsburg’s opinion, dealing primarily with the 

fundamental alteration defense, garnered only four votes, as Justice Stevens did not join. Justice 

Kennedy did not agree to join in any part of Justice Ginsburg’s opinion, but concurred in the 

judgment of the Court; essentially this means that he agreed with the result but not the reasoning of 

the majority. Justice Thomas wrote a dissenting opinion in which he was joined by Chief Justice 

Rehnquist and Justice Scalia. 

Justice Ginsburg began her opinion for the Court on the issue of the integration requirement’s 

application to institutionalization by noting that “the opening provisions of ADA” contain findings 

that “historically, society has tended to isolate and segregate individuals with disabilities, and, 

despite some improvements, such forms of discrimination against individuals with disabilities 

continue to be a serious and pervasive social problem”; “discrimination against individuals with 

disabilities persists in such critical areas as ... institutionalization”; and “individuals with disabilities 

continually encounter various forms of discrimination, including ... segregation ....” Id. at 588-89, 

quoting 42 U.S.C. § 12101(a)(2), (3), (5). The Court declared that ADA was the first statute in which 

Congress referred expressly to segregation of persons with disabilities as a form of discrimination 

and to discrimination in the area of institutionalization. 527 U.S. at 589 n. 1. 

The Court noted that in authorizing the Attorney General to issue regulations to implement Title II, 

ADA directed that such regulations were to be consistent with the coordination regulations under 

Section 504 of the Rehabilitation Act applicable to recipients of federal financial assistance. One 

provision of the coordination regulations requires recipients of federal funds to administer programs 

and activities in the most integrated setting appropriate to the needs of qualified persons with 

disabilities. 28 C.F.R. § 41.51(d) (1998). Accordingly, in issuing ADA Title II regulations, the 

Attorney General included a provision that the Supreme Court referred to as the “integration 

regulation.” It states: “A publicentity shall administer services, programs, and activities in the most 

integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 

35.130(d) (1998). The preamble to the Title IIregulations elaborates that “themost integrated setting 

appropriate” means “a setting that enables individuals with disabilities to interact with non-disabled 

persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p. 450 (1998). The Court also noted 

that another provision of the Title II regulations requires public entities to make “reasonable 

25

modifications” to avoid discriminating on the basis of disability, unless the public entity can show 

that the modifications would “fundamentally alter the nature of the service, program, or activity.” 

28 C.F.R. § 35.130(b)(7) (1998). The Court viewed the Attorney General’s Title II regulations as 

reflecting “two key determinations”—(1) that unjustified placement or retention of persons in 

institutions, severely limiting their exposure to the outside community, constitutes a form of 

discrimination based on disability prohibited by Title II; and (2) that the states’ obligation to avoid 

unjustified isolation of individuals with disabilities does not require states to make modifications that 

would involve a fundamental alteration. 527 U.S. at 596-97. The issue before the Court was whether 

the Attorney General was correct in these “key determinations,” and, if so, whether the Eleventh 

Circuit had applied them correctly. 

The state officials had argued that L.C. and E.W. were not subjected to discrimination “by reason 

of” their disabilities because they were not denied community placement on account of those 

disabilities, and they could not identify any similarly situated individuals given preferential 

treatment. The Court responded: “We are satisfied that Congress had a more comprehensive view 

of the concept of discrimination advanced in ADA.” Id. at 598. Comparing ADA with prior statutes 

such as the Developmentally Disabled Assistance and Bill of Rights Act of 1975 and Section 504 

of the Rehabilitation Act, the Court viewed ADA as having “stepped up earlier measures to secure 

opportunities for people with developmental disabilities to enjoy the benefits of community living.” 

Id. at 599. Relying on ADA “Findings” quoted above, the Court ruled that in ADA Congress not 

only required all public entities to refrain from discrimination, but it had explicitly identified 

unjustified “segregation” of persons with disabilities as a form of discrimination. TheCourt observed 

that this recognition that unjustified institutional isolation of persons with disabilities is a form of 

discrimination reflects two judgments: (1) that “institutional placement of persons who can handle 

and benefit from community settings perpetuates unwarranted assumptions that persons so isolated 

are incapable or unworthy of participating in community life;” and (2) that “confinement in an 

institution severely diminishes the everyday life activities of individuals, including family relations, 

social contacts, work options, economic independence, educational advancement, and cultural 

enrichment.” Id. at 600-01. Therefore, despite the Georgia officials’ arguments to the contrary, the 

Court found that dissimilar treatment had been established: “In order to receive needed medical 

services, persons with mental disabilities must, because of those disabilities, relinquish participation 

in community life they could enjoy given reasonableaccommodations, while persons without mental 

disabilities can receive the medical services they need without similar sacrifice.” Id. at 601. 

The Georgia officials contended that the findings in ADA should not outweigh the Medicaid 

statute’s congressional policy preference for treatment in institutions over treatment in the 

community. The Court responded that, while that may have been true in the past, since 1981 

Medicaid has provided funding for state-run home and community-based care through a waiver 

program, and the Department of Health and Human Services (HHS) has encouraged states to take 

advantage of it to fund community-based placements. 

The key ruling of the Court in Olmstead was that “[u]njustified isolation ... is properly regarded as 

discrimination based on disability,” id. at 597, and the Court therefore affirmed the ruling of the 

Eleventh Circuit on this issue. The Supreme Court added, however, some clarifications regarding 

26

how that principle should be applied. First, the Court stated that nothing in ADA or the regulations 

condones termination of institutional settings for persons unable to handle or benefit from 

community settings. Second, a state generally may rely on the reasonable assessments of its own 

professionals in determining whether an individual meets essential eligibility requirements for 

placement in a community-based program, and should not remove individuals from the more 

restrictive setting if they do not qualify for community-based placement. Third, federal law does not 

create any requirement that community-based treatment be imposed on persons who do not desire 

it. Id. at 601-02. In regard to L.C. and E.W., there was no genuine dispute that they were qualified 

for noninstitutional care, the State’s own professionals determined that community-based treatment 

would be appropriate for them, and both women sought community-based placements. 

On the second issue addressed by the Court in Olmstead—the standard of “fundamental alteration” 

that should be applied to the cost-based defense asserted by the Georgia officials—none of the 

various opinions filed by the Justices garnered a majority. It is significant, however, that a total of 

eight Justices (all except Justice Stevens) concluded that the Eleventh Circuit had applied too 

restrictive an interpretation of the defense. Justice Stevens would have affirmed the Eleventh 

Circuit’s decision as to the fundamental alteration defense. 

Justice Ginsburg’s opinion on the fundamental alteration defense issue, in which she was joined by 

Justices O’Connor, Souter, and Breyer, declares that a state’s responsibility to provide communitybased treatment to qualified persons with disabilities is not boundless, and is subject to the 

“fundamental alterations” limitation. The Eleventh Circuit, however, construed this limitation as 

permitting a cost-based defense “only in the most limited of circumstances,” and remanded to the 

district court to consider, among other things, “whether the additional expenditures necessary to treat 

L.C. and E.W. in community-based care would be unreasonable given the demands of the State’s 

mental health budget.” 138 F.3d at 902, 905. Justice Ginsburg believed that such a standard would 

leave the State “virtually defenseless,” because measuring the expense entailed in placing one or two 

people in a community-based treatment program against the State’s entire mental health budget 

would make it unlikely that a state could ever succeed in establishing a fundamental alteration 

defense. 527 U.S. at 603. In Justice Ginsburg’s view, a sensible construction of the fundamental 

alteration concept would allow the State to show that immediate relief for the plaintiffs would be 

inequitable in light of the responsibility the State has undertaken, and the allocation it has made of 

available resources, for the care and treatment of persons with mental disabilities. The district court 

simply compared the cost of caring for the plaintiffs in a community-based setting with the cost of 

caring for them in an institution, and concluded that community placements cost less than 

institutional confinements. Justice Ginsburg stated that such a comparison overlooks the increased 

overall expenses involved in funding community placements while still incurring the costs of 

maintaining institutions. And even if states eventually were able to close some institutions in 

response to an increase in the number of community placements, the States would still incur the cost 

of running partially full institutions in the interim. Justice Ginsburg does not believe that ADA can 

be reasonably read to force states to phase out institutions, nor to move institutionalized patients into 

an inappropriate setting, such as a homeless shelter. To maintain a range of facilities and to 

administer services with an even hand, therefore, she believes the State must have more leeway than 

under the lower courts’ interpretation of the fundamental-alteration defense. In her view, a state 

27

could meet ADA reasonable modification requirement by having a “comprehensive, effectively 

working plan” for placing qualified persons with mental disabilities in less restrictive settings. Id. 

at 605-06. And this would be sufficient even if the plan involved a waiting list, so long as the waiting 

list “moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully 

populated ....” Id. at 606. 

While holding that unjustified isolation is properly regarded as discrimination based on disability, 

Justice Ginsburg would also recognize the states’ need to maintain a range of facilities for the care 

and treatment of persons with diverse mental disabilities, and the states’ obligation to administer 

services with an even hand. In evaluating a state’s fundamental alteration defense, she believed the 

proper standard is to consider, in view of the resources available to the State, not only the cost of 

providing community-based care to the litigants, but also the range of services the state provides 

others with mental disabilities, and the State’s obligation to mete out those services equitably. 

Justice Stevens concurred in the judgment of the Court and entered a separate opinion explaining 

why he concurred in part in Justice Ginsburg’s opinion. He believed that the Eleventh Circuit had 

been correct in ruling that unjustified institutionalization constitutes a violation of the integration 

mandate of ADA, so he joined that part of Justice Ginsburg’s opinion that affirmed that portion of 

the Eleventh Circuit’s ruling, thus making a fifth vote so that that part of the opinion represented a 

majority of the Court. On the fundamental alteration defense issue, Justice Stevens thought the 

Eleventh Circuit had made a correct ruling, so he would have voted to affirm the Eleventh Circuit’s 

ruling in its entirety. Therefore, he did not join Justice Ginsburg’s opinion on that issue. 

Justice Kennedy concurred in the judgment of the Court. He wrote a separate opinion emphasizing 

his views on both the integration/deinstitutionalization issue and the fundamental alteration defense. 

He began his opinion by noting that insufficient resources are devoted to treating mental disorders. 

He also observed that “persons with mental disabilities have been subject to historic mistreatment, 

indifference, and hostility.” Id. at 608. He went on to discuss what he called the “dark side” of 

deinstitutionalization, and declared that “it would be a tragic event ... were the Americans with 

Disabilities Act of 1990 (ADA) to be interpreted so that states had some incentive, for fear of 

litigation, to drive those in need of medical care and treatment out of appropriate care and into 

settings with too little assistance and supervision.” Id. at 610. Accordingly, he believed that the 

principle of liability for unjustified segregation must be applied with caution and circumspection, 

or states might be pressured into attempting compliance “on the cheap,” placing persons with mental 

disabilities in settings not offering needed services. Id. Accordingly, he cautioned lower courts to 

apply the Court’s decision with great deference to medical decisions of treating physicians and to 

the program funding decisions of state policymakers. 

Justice Kennedy embraced a theory of discrimination on the basis of disability that focused on a 

showing of “animus or unfair stereotypes regarding the disabled” or of “differential treatment” vis-avis some other group, and suggested that the prohibition of discrimination in Title II might forbid 

as “irrational” distinctions by reason of disability made by a state entity that without adequate 

justification exposed a person or persons with disabilities to more onerous treatment than others in 

the provision of services or the administration of existing programs. Id. at 611. He added that a state 

28

is not required to create community-treatment programs that do not exist, and that states are entitled 

to “make hard decisions on how much to allocate to treatment of diseases and disabilities.” Id. at 

612. In the case before the Court, he believed that L.C. and E.W. had not identified a class of 

similarly situated individuals nor shown how such a class had been given preferential treatment. 

Accordingly, he would have ruled that the lower courts should have required additional factual 

showings to establish a violation of Title II. He also indicated his agreement with Justice Ginsburg’s 

opinion that the lower courts had overly restricted the State’s cost defense. In his view, the State 

should have wide discretion in adopting its own systems of cost analysis for allocating health care 

resources,including determinations based on fixed andoverhead costs for institutions and programs. 

Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissented. He took issue with 

the majority’s finding that the plaintiffs had established discrimination by showing that they were 

kept in an institutional setting after they became eligible for community placement. He argued that 

discrimination must involve differential treatment vis-a-vis members of a different group on the 

basis of a statutorily described characteristic, such as disability. In his view, the majority’s more 

comprehensive interpretation of discrimination under Title II of ADA, to include institutional 

isolation of persons with disabilities, is not adequately supported by the segregation and 

institutionalization findings of ADA, without any other clear directive in the statutory language. 

Justice Thomas further contended that there had been no showing that the plaintiffs were treated 

differentlycompared to otherwisesimilarlysituated persons,except for dissimilar treatment resulting 

from the fact that different classes of persons receive different services, which in his eyes does not 

constitute discrimination as traditionally defined. Finally, he argued that any differential treatment 

was not by reason of disability, since community placement is not available to those without 

disabilities. He concluded that the denial of community placements for L.C. and E.W. occurred not 

“by reason of” their disability, but, rather, because the State of Georgia defendants had limited 

resources. 

I. BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA v. GARRETT 

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). 

This case involved separate lawsuits, one filed by Patricia Garrett and another by Milton Ash, that 

were consolidated on appeal. Patricia Garrett, a registered nurse, was employed as Director of 

Nursing, OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham Hospital. In 

1994, she was diagnosed with breast cancer and subsequently underwent a lumpectomy, radiation 

treatment, and chemotherapy. These treatments necessitated her taking leave from work. When she 

returned to work in July 1995, her supervisor notified her that she would have to give up her position 

as director. She thereafter applied for and received a transfer to another, lower paying position as a 

nurse manager. 

Milton Ash was a security officer with the Alabama Department of Youth Services. When he began 

his job, he informed the Department that he had chronic asthma and that his doctor recommended 

he avoid carbon monoxide and cigarette smoke. Mr. Ash requested that the Department modify his 

29

duties to minimize his exposure to these substances. Later, he was diagnosed with sleep apnea and, 

upon the recommendation of his doctor, asked to be reassigned to daytime shifts to accommodate 

his condition. The Department refused to make any of the changes Mr. Ash requested. After he filed 

a discrimination claim with the Equal Employment Opportunity Commission, his performance 

evaluations started being lower than those he had received previously. 

Eventually both Ms. Garrett and Mr. Ash filed lawsuits in federal court, seeking monetary damages 

under ADA. In each case, the Alabama state agency employers moved for summary judgment, 

claiming that they were shielded by the Eleventh Amendment and that in enacting ADA Congress 

had exceeded its authority to abrogate states’ immunity under that Amendment. The district court 

decided to address both cases in a single opinion, and granted the defendants’ motions for summary 

judgment. The cases were then formally consolidated on appeal to the U.S. Court of Appeals for the 

Eleventh Circuit. The Eleventh Circuit reversed, ruling that ADA validly abrogates the states’ 

Eleventh Amendment immunity. 

In a 5-4 decision, the Supreme Court ruled that suits by employees of a state to recover money 

damages from a state for violations of Title I of ADA are barred by the Eleventh Amendment. The 

majority opinion was written by Chief Justice Rehnquist. Early in the opinion, he acknowledged that 

the wording of the Eleventh Amendment applies only to suits against a state by citizens of another 

state, and explained that the Court’s decisions extended the Amendment’s applicability to suits by 

citizens against their own states. Ultimately, the Eleventh Amendment has come to mean that states 

may not be sued by private individuals in federal court without the state’s consent. Prior to its 

Garrett decision, the Court’s most recent ruling on the Eleventh Amendment was Kimel v. Florida 

Bd. of Regents, 528 U.S. 62 (2000), in which the Court ruled that the Age Discrimination in 

Employment Act did not validly abrogate states’ Eleventh Amendment immunity from suits by 

private individuals. 

In Garrett, the Court observed that Congress may abrogate the states’ Eleventh Amendment 

immunity, but to do so it must comply with two conditions: (1) that it abrogates such immunity 

unequivocally, and (2) that it acts pursuant to a valid constitutional grant of authority. In ADA, 

Congress expressly declared that states are not to be immune under the Eleventh Amendment to 

court actions under the Act, 42 U.S.C. § 12202, so the first requirement was not in dispute. The 

question left for the Court was whether Congress acted within its constitutional authority by 

subjecting the states to suits in federal court for money damages under Title I of ADA. The Court 

declared that ADA could limit state sovereignty under the Eleventh Amendment only if it is 

appropriate legislation under § 5 of the Fourteenth Amendment, which gives Congress the power 

to enact “appropriate legislation” to enforce the requirements of that amendment. The Court 

recognized that under § 5 Congress is not limited to merely repeating the requirements of the 

Fourteenth Amendment as delineated in court decisions, but is given the power to remedy and to 

deter violations of rights guaranteed under the Amendment by prohibiting “a somewhat broader 

swath of conduct, including that which is not itself forbidden by the Amendment’s text.” 531 U.S. 

at 963, quoting Kimel, supra, at 81; City of Boerne v. Flores, 521 U.S. 507, 536 (1997). On the other 

hand, the Court considered it a settled principle that it is the province of the Court, not the Congress, 

to define the substance of constitutional guarantees. To identify the limit of congressional authority 

30

under § 5, the Court referred to its decision in the City of Boerne v. Flores case in 1997, which had 

established a requirement that § 5 legislation reaching beyond the scope of the Fourteenth 

Amendment’s guarantees must exhibit “congruence and proportionality” between the constitutional 

injury being addressed and the means adopted to address it. Garrett, at 963, quoting City of Boerne, 

supra, at 520. 

In applying these principles to the coverage of states by Title I of ADA, the Court took a narrow 

view of what constitutes a Fourteenth Amendment violation against persons with disabilities. For 

many years, a key factor in equal protection analysis in the Court’s decisions has been which of the 

levels of scrutiny—strict, moderate, or low—a particular type of unequal treatment will be evaluated 

under. The Court viewed its decision in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 

(1985), which involved a group home for individuals with mental retardation, as having essentially 

settled the issue that disability is neither a suspect or quasi-suspect classification under the Equal 

Protection Clause. Accordingly, state discrimination on the basisof disability challenged as violating 

equal protection would merit only “rational-basis review”—the lowest level of equal protection 

analysis. Under this standard, a state will not be held to have violated the Equal Protection Clause 

if there is a rational relationship between the disparity of treatment and some legitimate 

governmental purpose. Moreover, the Court declared that a state does not need to articulate its 

reasoning at the moment a particular decision is made. Instead, the party bringing an equal protection 

challenge has the burden of showing that there is no reasonably conceivable state of facts that could 

provide a rational basis for the classification. 

In an ominous paragraph, the Court described the conclusions it derived from its rational basis 

analysis: 

Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to


make special accommodations for the disabled, so long as their actions toward such


individuals are rational. They could quite hardheadedly—and perhaps hardheartedly—hold


to job-qualification requirements which do not make allowance for the disabled. If special


accommodations for the disabled are to be required, they have to come from positive law and


not through the Equal Protection Clause.


Garrett, at 964.


Having severelyrestricted the constitutional dimensions of disability-based discrimination, theCourt 

then examinedwhetherCongresshad identified a history and pattern of unconstitutional employment 

discrimination by the States against individuals with disabilities.TheCourt discounted any examples 

from the legislative history that involved discrimination by cities and counties, because the Eleventh 

Amendment does not extend immunity to such local governmental entities. The Court also 

disregarded broad findings of societal discrimination in ADA because it viewed most such 

discrimination as not involving the activities of states. The Court also found unpersuasive what it 

termed “half a dozen examples from the record” cited in the brief on behalf of Garrett that did 

involve states. Id. at 965. While the Court accepted that several of the cited incidents evidenced an 

unwillingnesson the part of state officials to make the sort of accommodations for disability required 

by ADA, it considered it “more debatable” whether they were irrational under the decision in 

31

Cleburne. Id. But even if they were determined to show unconstitutional action on the part of the


states, the Court found that these incidents fell far short of showing the pattern of unconstitutional


discrimination on which § 5 legislation must be based. In light of ADA finding that some 43,000,000


Americans have one or more disabilities, and statistics indicating that in 1990 the states employed


more than 4.5 million people, the Court found that the evidence Congress assembled of


unconstitutional state discrimination in employment was inadequate.


The Court added that even if the examples were accepted as demonstrating a pattern of


unconstitutional discrimination by the states, the rights and remedies created by ADA against the


states would still raise problems of “congruence and proportionality” of the kind the Court had found


in its City of Boerne ruling. The Court particularly singled out, as exceeding what is constitutionally


required, ADA facility accessibility and reasonable accommodation requirements, and the


prohibition against standards, criteria, or methods of administration that have the effect of


discrimination. The Court contrasted ADA legislative record with congressional documentation of


“a marked pattern of unconstitutional action by the States,” 


addressed by “a detailed but limited remedial scheme” in enacting the Voting Rights Act of 1965.


Id. at 967.


Ultimately, the Court found that in enacting ADA Congress had fallen short of the constitutional


prerequisites to authorizing private individuals to recover money damages against the states:


demonstrating a pattern of discrimination by the states which violates the Fourteenth Amendment,


and imposing a remedy that is congruent and proportional to the targeted violation. Accordingly, the


Court reversed the judgment of the Eleventh Circuit.


The Court added a footnote (number 9) at the end of its opinion to clarify that its ruling did not mean


that persons with disabilities have no federal recourse against discrimination. The Court noted that


states are still subject to Title I standards, and those standards can be enforced by the United States


in actions for money damages, as well as by private individuals in actions for injunctive relief. In


addition, state laws protecting the rights of persons with disabilities in employment may provide


additional avenues of redress. In a different footnote (number 1) at the beginning of its opinion, the


Court stressed that it was not addressing whether Title II, “which has somewhat different remedial


provisions from Title I,” is appropriate legislation under § 5. Id. at 960 n.1. Of course, some of the


analysis the Court applies to Title I in Garrett might greatly affect the analysis of Eleventh


Amendment immunity under Title II in future court challenges.


Justice Kennedy wrote a concurring opinion, in which Justice O’Connor joined. While recognizing


that persons with disabilities encounter prejudice stemming from indifference or insecurity and from


malicious ill will, and that ADA “will be a milestone on the path to a more decent, tolerant,


progressive society,” Id. at 968 (Kennedy, concurring). Justice Kennedy wrote separately primarily


to stress that states should not be subjected to the same standards of discrimination as citizens. He


challenged the prospect of states being held in violation of the Constitution for embodying “the


misconceived or malicious perceptions of some of their citizens.” Id. He also noted his belief that


if discrimination by states represented a serious constitutional problem he would have expected


substantial litigation of these issues in state and federal courts, which he believed had not occurred.


32

Justice Breyer wrote a forceful dissenting opinion, in which he was joined by Justices Stevens, 

Souter, and Ginsburg. He took strong issue with the Court’s second-guessing of the congressional 

record of ADA “as if it were an administrative agency record.” Id. at 969 (Breyer, dissenting). He 

responded to the majority’s finding that Congress had assembled only minimal evidence of 

unconstitutional state discrimination in employment by contending that Congress had, in fact, 

compiled a “vast legislative record” documenting massive, society-wide discrimination against 

persons with disabilities. Id. In Justice Breyer’s view, the evidence and findings of society-wide 

prejudice and discrimination implicated the states because “[t]here is no particular reason to believe 

that they are immune from the ‘stereotypic assumptions’ and pattern of ‘purposeful unequal 

treatment’ that Congress found prevalent.” Id. Moreover, contrary to the “half a dozen” examples 

of employment discrimination recognized by the majority, Justice Breyer argued that there were 

approximately 300 such examples in ADA legislative record, and he attached an appendix to his 

opinion identifying them. In addition, he discussed various ADA findings and specific examples of 

discrimination by state and local government entities at some length in his opinion. 

In addition to disagreeing with the majority about the quantity of evidence of a constitutional 

problem amassed by Congress, Justice Breyer also argued that the majority had used the wrong 

standard in evaluating such evidence in that it had afforded insufficient deference to and respect for 

Congress. In his view, the Court’s application of the rational basis standard was misguided. Rational 

basis analysis, he argued, is a manifestation of judicial restraint that is appropriate to courts, not to 

Congress: “a legislature is not a court of law,” Id. at 971; “the Congress of the United States is not 

a lower court,” Id. at 973. In applying a rule designed to restrict courts as if it restricted the 

legislative power of Congress, he believed theCourt had stood the underlying principle—a principle 

of judicial restraint—on its head. 

Justice Breyer also disagreed with the majority that ADA’s damages remedy was not “congruent” 

with and “proportional” to the equal protection problem that Congress found. He defended ADA’s 

reasonable accommodation requirement by arguing that it is appropriate for Congress to impose a 

remedy that, in response to unreasonable employer behavior, requires an employer to make 

accommodations that are reasonable. And he believed that the Court had repeatedly confirmed that 

§ 5 grants to Congress just this kind of power to require more than the minimum. He believed that 

Congress should be permitted to use any rational means to implement the constitutional prohibition, 

and the Court should merely determine if it could perceive a basis upon which the Congress might 

have addressed the problem as it did, not to reassess the congressional resolution of conflicting 

considerations including the risk or pervasiveness of the discrimination, the adequacy oravailability 

of alternative remedies, and the effect upon state interests. While professing to follow the principle 

of deference to Congress, the Court in its recent cases “sounds the word of promise to the ear but 

breaks it to the hope.” Id. at 975. 

Ultimately, Justice Breyer concluded that the Court, “through its evidentiary demands, its nondeferential review, and its failure to distinguish between judicial and legislative constitutional 

competencies, improperly invades a power that the Constitution assigns to Congress.” Id. at 975-76. 

This outcome, in his view, effectively saps the independent force of § 5. 

33

J. BUCKHANNON BOARD AND CARE HOME, INC. V. W. VA. DEP’T OF 

HEALTH AND HUMAN RESOURCES 

Buckhannon Board and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 

121 S.Ct. 1835 (2001). 

The Buckhannon Board and Care Home, Inc. operates residential care homes that provide assisted 

living services to their elderly residents. The care homes failed an inspection by the West Virginia 

Office of the State Fire Marshal because some of the residents were found incapable of “selfpreservation” as required under state law, because they could not get to a fire exit without aid. 

Provisions of the West Virginia Code required that all residents of residential board and care homes 

be capable of “self-preservation,” or capable of moving themselves “from situations involving 

imminent danger, such as fire.” W. Va. Code § 16-5H-1, 16-5H-2 (1998). After receiving cease and 

desist orders requiring the closure of its facilities within 30 days, Buckhannon Board and Care 

Home, Inc., commenced a lawsuit in federal court in October 1997, on behalf of itself and other 

similarly situated homes and residents against the State of West Virginia, two of its agencies, and 

18 individual officials. In the lawsuit, Buckhannon was joined as a plaintiff by Dorsey Pierce, a 102-

year-old Buckhannon resident, along with another resident and an organization of residential homes. 

The plaintiffs charged that the “self-preservation” requirement violated the Fair Housing 

Amendments Act of 1988 (FHAA), and the Americans with Disabilities Act of 1990 (ADA). 

The defendants agreed to delay enforcement of the cease and desist orders pending resolution of the 

case, and the parties began discovery. In 1998, the West Virginia Legislature passed legislation 

eliminating the “self-preservation” requirement, and the defendants moved to dismiss the case as 

moot. The district court granted the motion, finding that the 1998 amendments had eliminated the 

problematic provisions and that there was no indication that the West Virginia Legislature would 

repeal the amendments. The plaintiffs asked the court to award it attorney’s fees as the “prevailing 

party” under the FHAA and ADA. The FHAA has a provision stating that “the court, in its 

discretion, may allow the prevailing party ... a reasonable attorney’s fee and costs.” 42 U.S.C. § 

3613(c)(2). ADA, likewise, has a provision stating that “the court ..., in its discretion, may allow the 

prevailing party ... a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. 

§ 12205. The district court denied the plaintiffs’ request for attorney’s fees on the grounds that one 

cannot be a “prevailing party” without having obtained an enforceable judgment, a consent decree, 

or a settlement giving some of the legal relief sought in the lawsuit, and the Fourth Circuit affirmed 

the district court’s judgment. 

The Supreme Court noted that most of the U.S. Courts of Appeals had authorized the awarding of 

attorney’s fees under what is called the “catalyst theory.” Under this approach a plaintiff is 

considered a “prevailing party” if it achieves the desired result because the lawsuit brought about a 

voluntary change in the defendant’s conduct. Both in its Buckhannon ruling and previously, the 

Fourth Circuit had rejected the catalyst theory and required a judgment, consent decree, or settlement 

in a party’s favor before the party would be eligible for attorney’s fees. In a 5-4 decision, the 

Supreme Court agreed with the Fourth Circuit and rejected the catalyst theory. 

34

Justice Rehnquist delivered the opinion for the Court. He began by discussing what is known as the 

“American Rule,” under which parties in the United States courts are ordinarily required to pay for 

their own attorneys; the prevailing party is not entitled to collect attorney’s fees from the loser. 

Accordingly, U.S. courts generally do not award fees to a prevailing party unless there is a statute 

that explicitly authorizes them to do so. Congress has authorized the award of attorney’s fees to the 

“prevailing party” in a variety of statutes, including the FHAA, ADA, the Civil Rights Act of 1964, 

the Voting Rights Act Amendments of 1975, the Civil Rights Attorney’s Fees Awards Act of 1976, 

and numerous others. The Supreme Court had not previously ruled on the precise definition to be 

accorded the term “prevailing party.” 

To ascertain the meaning of this legal term of art, the Supreme Court looked to Black’s Law 

Dictionary. This legal dictionary defines “prevailing party” as “[a] party in whose favor a judgment 

is rendered, regardless of the amount of damages awarded (in certain cases, the court will award 

attorney’s fees to the prevailing party).—Also termed successful party.” Black’s Law Dictionary 

1145 (7th ed. 1999). The Court stated that its prior decisions were consistent with this definition’s 

view that a “prevailing party” is one who has been awarded some relief by the court. The Court 

characterized its prior decisions as having not ever reached or as expressly reserving the issue of the 

validity of the “catalyst theory.” The prior cases had determined that attorney’s fees could be 

awarded in three sets of circumstances: (1) where plaintiffs had prevailed on the merits of at least 

some of their claims and received at least some judicial relief; (2) where plaintiffs had established 

their entitlement to some relief through settlement agreements enforced through a court-ordered 

consent decree; and (3) possibly, where plaintiffs had established their entitlement to some relief 

through private settlement agreements, provided the terms of the agreement are incorporated into 

the order of dismissal. 

The Court ruled that the catalyst theory fell outside these categories. It identified the critical criterion 

as whether there is “judicially sanctioned change in the legal relationship of the parties,” and held 

that a defendant’s voluntary change in conduct, even if it accomplishes what the plaintiff sought to 

achieve by the lawsuit, lacks the necessary “judicial imprimatur” on the change. 121 S.Ct. at 1840. 

Such a result, the Court stated, was consistent with its prior rulings, which had never awarded 

attorney’s fees for a nonjudicial alteration of actual circumstances. 

Addressing the plaintiffs’ arguments that the catalyst theory is necessary to prevent defendants from 

unilaterally mooting an action before judgment in an effort to avoid an award of attorney’s fees, and 

that rejection of the theory would deter plaintiffs with meritorious but expensive cases from bringing 

suit, the Court was skeptical that these were real problems, calling them “entirely speculative and 

unsupported by any empirical evidence.” Id. at 1842. And such concerns, said the Court, are 

counterbalanced by the disincentive the catalyst theory can have upon a defendant’s decision to 

voluntarily change its conduct, whether that conduct is or is not illegal, because a defendant will be 

dissuaded from changing its conduct if it believes it may incur attorney’s fees as a result. In any 

event, such mooting of the action by voluntary change is not a possibility in lawsuits involving 

claims for monetary damages, and courts have the authority not to dismiss a case for mootness 

unless it is clear that the allegedly wrongful behavior could not reasonably be expected to recur. The 

Court also noted that the catalyst theory would result in substantial secondary litigation on the 

35

attorney’s fees issue, involving demanding, heavily fact-dependent proceedings. 

Ultimately, however,theCourt discounted all such policy-based considerations, ruling that the “clear 

meaning” of “prevailing party” in the fee-shifting statutes was determinative. The Court affirmed 

the judgment of the Fourth Circuit. 

Justice Scalia, who joined in the opinion for the Court, wrote a separate concurring opinion in which 

he was joined by Justice Thomas. Justice Scalia noted that he wanted to respond in greater detail to 

various arguments made by the dissent. He began by tracing the history of the use of the term 

“prevailing party” and of the judicial decisions interpreting it. He concluded that at the time the term 

was used in the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, he knew of no 

case in which the catalyst theory was used as the basis for the awarding of costs. He stated that the 

dissent cited no Supreme Court case nor any other federal court case prior to 1976 interpreting 

federal law in which the court “regarded as the ‘prevailing party’ a litigant who left the courthouse 

emptyhanded.” 121 S.Ct. at 1844-45. Justice Scalia accused the dissent of distorting the term 

“prevailing party” beyond its normal meaning to permit awards of attorney’s fees when the merits 

of plaintiff’s case remain undetermined and the defendant may only have abandoned the fray to 

avoid the financial or public relations costs of continuing the litigation. He doubted that Congress 

intended to reward a party because it had greater strength in financial resources, or superiority in 

media manipulation, instead of superiority in the legal merits of its case. 

Justice Scalia recognized that the Court’s position will sometimes result in a denial of fees to 

plaintiffs “with a solid case whose adversary slinks away on the eve of judgment,” while he believes 

that the dissent’s position would sometimes reward plaintiffs “with a phony claim.” Id. at 1847. But 

he considers the latter situation—in which the law would be the instrument of wrong in exacting 

attorney’s fees for the “extortionist”—much worse than the former—in which the law would deny 

“the extraordinary boon of attorney’s fees” to some plaintiffs who are no less “deserving” of them 

than others who receive them. Id. 

Justice Scalia had no problem with the fact that the Court’s decision rejected the position that had 

been taken by most of the Courts of Appeals. He suggested that it is not uncommon for the Court 

to disagree with the predominant position of the Circuits, sometimes even when they are unanimous. 

And he argued that the Court’s clarification was particularly appropriate since the majority view 

among the Circuits had been “nurtured and preserved” by “misleading dicta” in some of the Court’s 

prior decisions (to which Justice Scalia admits, he had contributed): “enshrining the error that we 

ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our 

colleagues would surely be unworthy.” Id. at 1849. Justice Scalia concluded by observing that 

Congress is free to revise the attorney’s fees provisions, but added his expectation that, if it did, it 

would not simply adopt the catalyst theory, but would require courts to determine that there was at 

least a substantial likelihood that the party requesting fees would have prevailed. 

Justice Ginsburg, joined by Justices Stevens,Souter, and Breyer, dissented. She began her dissenting 

opinion by characterizing the Court’s ruling as holding that a plaintiff whosesuit prompts the precise 

relief the lawsuit seeks does not “prevail,” and cannot obtain an award of attorney’s fees, unless the 

36

plaintiff secures a court entry memorializing the plaintiff’s victory. The court entry does not have 

to be a judgment on the merits or involve any finding of wrongdoing; a court-approved settlement 

will do. In Justice Ginsburg’s view, the Court’s insistence on a document filed in court involves an 

“anemic construction” of the term “prevailing party,” and rejects “a key component of the feeshifting statutes Congress adopted to advance enforcement of civil rights”—the catalyst theory; the 

result is a decision that is unwarranted in “history, precedent, or plain English.” Id. at 1850. 

Justice Ginsburg pointed out that, prior to 1994, the Courts of Appeals were unanimous (except the 

Federal Circuit, which had not addressed the issue) in accepting the catalyst theory and permitting 

plaintiffs to obtain fee awards even if they did not obtain a judgment or consent decree. In 1994, the 

Fourth Circuit deviated from its prior stance and broke ranks from the other Circuits by holding that 

a plaintiff could not become a “prevailing party” without an enforceable judgment, consent decree, 

or settlement. Subsequently, the nine other circuits reaffirmed their endorsement of the catalyst 

approach. 

Justice Ginsburg outlined three conditions the lower courts had imposed for a party to qualify as a 

prevailing party under the catalyst theory: (1) a plaintiff had to show that the defendant provided 

some of the benefit sought by the lawsuit; (2) a plaintiff had to demonstrate that the suit stated a 

genuine claim—one that was at least “colorable,” not frivolous, unreasonable, or groundless; and 

(3) the plaintiff had to establish that the suit was a “substantial” or “significant” cause of the 

defendant’s action providing relief. In contrast to this accepted interpretation of “prevailing party,” 

she complained that the Court had found a “clear meaning” of the term that “has heretofore eluded 

the large majority of courts construing those words.” Id. at 1853. While agreeing with Black’s Law 

Dictionary that a party in whose favor a judgment is rendered prevails, she saw no reason to 

conclude that only such a party prevails. Moreover, she observed that the Court had not previously 

treated Black’s Law Dictionary as a single authoritative source of definitions, but had given statutory 

terms a contextual reading. 

After reviewing the prior statutory and case law, JusticeGinsburg concluded that “there is substantial 

support, both old and new, federal and state, for a costs award ... to the plaintiff whose suit prompts 

the defendant to provide the relief plaintiff seeks.” Id. at 1855. Believing that Congress intended the 

phrase “prevailing party” to carry its ordinary, contemporary, common meaning, Justice Ginsburg 

quoted a dictionary definition of the word “prevail” as meaning “gain victory by virtue of strength 

or superiority: win mastery: triumph.” Id., quoting Webster’s Third New International Dictionary 

1797 (1976). She argued that a lawsuit’s ultimate purpose is to achieve actual relief from an 

opponent, and, while a favorable court judgment may be instrumental in gaining such relief, the 

judicial decree is not the end but the means.Based upon this common understanding of “prevailing,” 

if a party reaches the “sought-after destination,” then the party prevails “regardless of the route 

taken.” Id. at 1856, quoting Hennigan v. Ouachita Parish School Bd., 749 F.2d 1148, 1153 (5th Cir. 

1985). Thus, Justice Ginsburg argued that a fair reading of the attorney’s fees provisions in the 

FHAA and ADA would indicate that a party prevails whenever the party achieves, by instituting 

litigation, the practical relief sought in the complaint. In the present case, she believed the plaintiffs’ 

objective was not to obtain a judge’s endorsement, but to stop enforcement of a rule requiring 

Buckhannon to evict residents like Dorsey Pierce. If the plaintiffs achieved that objective due to the 

37

strength of their case, then they were properly judged as the party who prevailed. 

Justice Ginsburg argued that the catalyst theory advanced the enforcement of civil rights by private 

citizens—sometimes referred to as “private Attorneys General.” It also enabled persons of lesser 

means to be able to enter into litigation which they otherwise could not afford to undertake. 

Ultimately, Justice Ginsburg concluded that “[t]he Court’s narrow construction of the words 

‘prevailing party’ is unsupported by precedent and unaided by history or logic.” Id. at 1861. 

K. PGA TOUR, INC. v. MARTIN 

PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879 (2001) 

Casey Martin, a professional golfer, qualified for the Nike Tour in 1998 and 1999, and for the PGA 

Tour in 2000. Since birth he has had a degenerative circulatory disorder, called Klippel-TrenaunayWeber Syndrome, that obstructs the flow of blood from his right leg to his heart. The painful, 

progressive condition has caused his right leg to atrophy. Toward the end of his college years, he 

became unable to walk an 18-hole golf course. Walking caused him pain, fatigue, and anxiety; it also 

created a significant risk of hemorrhaging, blood clots, and fractures of his leg bone that could 

necessitate an amputation. When Mr. Martin turned pro he entered a three-stage qualifying 

tournament known as the “Q-School” run by PGA Tour, Inc. He was entitled to use a golf cart 

during the first two stages, and he completed them successfully. Since 1997, however, the PGA Tour 

had prohibited the use of carts in the third stage. Mr. Martin made a request, supported by detailed 

medical records, that he be allowed to use a cart during the third stage. The PGA Tour refused to 

review the medical records Mr. Martin had submitted or to waive its walking rule for the third stage. 

Mr. Martin filed a lawsuit in federal court alleging that the PGA Tour was violating ADA by 

refusing to let him use a golf cart. 

The district court entered a preliminary injunction directing that Martin be allowed to use a cart in 

the final stage of the Q-School and as a competitor in the Nike Tour and PGA Tour. The PGA Tour 

subsequently moved for summary judgment on the ground that it was exempt from coverage under 

Title III of ADA as a “private club or establishment,” and also that the play areas of its tour 

competitions do not constitute places of “public accommodation” within the scope of Title III. The 

lower court rejected both of these contentions. At trial, the PGA Tour did not contest that Martin had 

a disability covered by ADA, or that his condition prevented him from walking the golf course. 

Instead, it argued that the requirement of walking is a substantive rule of competition, and that 

waiving it for any individual for any reason would fundamentally alter the nature of the competition. 

The PGA Tour presented evidence that fatigue can be a critical factor in a tournament, particularly 

on the last day when psychological pressure is at a maximum, and that permission to use a cart might 

give some players a competitive advantage over other players who must walk. 

The evidence on behalf of Mr. Martin showed that with a cart he must still walk over a mile during 

an 18-hole round, and the district court concluded that with his condition the fatigue he suffered was 

greater than the fatigue other competitors endure from walking the course. The district court rejected 

38

the PGA Tour’s contention that there should not be any individualized inquiry into the application 

of the walking rule, and concluded that under ADA it had a duty to inquire into the purpose of the 

rule, and to determine whether a reasonable modification could be made to accommodate Martin 

without frustrating the purpose of the rule and fundamentally altering the nature of PGA Tour’s 

tournaments. After hearing the evidence at trial, the court concluded that using a golf cart would not 

give Martin a competitive advantage, and that it would not fundamentally alter the nature of PGA 

Tour golf to accommodate him with a cart. Therefore, the court entered a permanent injunction 

requiring the PGA Tour to permit Martin to use a cart in tour and qualifying events. 

On appeal to the Ninth Circuit, the PGA Tour gave up on its claim that it was exempt as a “private 

club,” but reasserted its contentions that during a tournament the portion of the golf course “behind 

the ropes” is not a place of public accommodation because the public is restricted from entering it, 

and that granting Mr. Martin permission to use a cart would “fundamentally alter” the nature of the 

tour competitions. The Court of Appeals could find no basis for distinguishing between using a place 

of public accommodation for pleasure and using it in pursuit of a living, and ruled that golf courses 

remain places of public accommodation during PGA tournaments. The Ninth Circuit viewed the 

fundamental alteration issue as turning on an individualized, fact-based inquiry, and found that 

Martin’s use of a cart would not fundamentally alter the competition. 

On the day after the Ninth Circuit’s ruling in the Martin case, the Seventh Circuit issued an opinion 

in the case of Olinger v. United States Golf Assn., 205 F.3d 1001 (7th Cir. 2000), that reached a 

contrary conclusion on the fundamental alteration issue. Ford Olinger, a golfer with bilateral 

avascular necrosis, a degenerative condition that significantly hindered his ability to walk, brought 

the lawsuit against the United States Golf Association (USGA) because it refused to let him use a 

cart in the United States Open. The Seventh Circuit found that the physical ordeals endured by golf 

legends Ken Venturi and Ben Hogan when they walked to their Open victories in 1964 and 1950 

demonstrated the importance of stamina in the tournament. Moreover, the court ruled, alternatively, 

that ADA does not require the USGA to bear the administrative burdens of evaluating requests to 

waive the walking rule and permit the use of a golf cart. The different outcomes in Martin and 

Olinger thus represented a split in the Courts of Appeals, one of the factors that influence the 

Supreme Court to agree to hear an appeal in a case. 

In a 7-2 decision, the Supreme Court affirmed the Ninth Circuit’s judgment in Martin. In an opinion 

delivered by Justice Stevens, the Court began its discussion of the case by looking at the overall 

objectives of ADA and observing that “Congress enacted ADA in 1990 to remedy widespread 

discrimination against disabled individuals.” 121 S.Ct. at 1889. It further noted the “comprehensive 

character” of ADA’s “broad mandate” against discrimination on the basis of disability. Id. Focusing 

on the public accommodations provisions—Title III—of the Act, the Court found that the legislative 

history indicated that the concept of public accommodations should be construed liberally to afford 

peoplewith disabilities equal access to the wide variety of establishments available to people without 

disabilities. 

The Court declared that Title III, by its plain terms, seems to cover PGA Tour events and to afford 

protection to Mr. Martin. Title III specifically identifies “golf course[s],” as a type of public 

39

accommodation. 42 U.S.C. § 12181(7)(L). It requires those who lease or operate such an 

accommodation, such as the PGA Tour, not to discriminate against any “individual” in the “full and 

equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of 

those courses. Id., § 12182(a). Accordingly, the PGA Tour’s “golf tours and their qualifying rounds 

fit comfortably within the coverage of Title III, and Martin within its protection.” 121 S.Ct. at 1890. 

In its appeal to the Supreme Court, the PGA Tour admitted that its tournaments are conducted at 

places of public accommodation, and stopped contending that the competitors’ area “behind the 

ropes” is not a public accommodation. Instead, the Tour argued that the competing golfers are not 

members of the class protected by Title III. According to this argument, Title III addresses 

discrimination against “clients or customers” seeking to obtain “goods and services” at places of 

public accommodation, whereas it is Title I that protects persons who work at such places, and in 

its golf tournaments the PGA Tour operates not as a golf course but as a “place of exhibition or 

entertainment,” 42 U.S.C. § 12181(7)(C). Thus, a professional golfer such as Martin should be 

considered a provider rather than a consumer of the entertainment sold to the public. Martin would 

therefore not be able to bring a claim under Title III because he is not a client or customer of the 

public accommodation. Moreover, the PGA Tour contended that Mr. Martin’s claim of 

discrimination was job-relatedand could only be brought under Title I—the employment provisions 

of ADA—an option that the district court had foreclosed because it ruled he was an independent 

contractor rather than an employee. 

The Court recognized that the “clients or customers” language did not appear in the general 

prohibition of discrimination in Title III but in a provision governing attempts to avoid 

nondiscrimination obligations through contractual licensing, or other arrangements. Id., 

§ 12182(b)(1)(A)(iv). The PGA Tour urged, however, that the limitation of this provision’s coverage 

to clients or customers should be construed to limit the scopeof Title III’s protection as a whole. The 

Court decided it was not necessary to determine whether the Tour was correct in this interpretation, 

because, even if it were, Martin was a client or customer of the PGA Tour. The Court found that the 

PGA Tour simultaneously offered at least two “privileges” to the public—that of watching the golf 

tournament and that of competing in it. The fact that the PGA Tour serves spectators at tournaments 

as one set of clients or customers does not prevent it from having another set, players in tournaments, 

against whom it also may not discriminate. The Court felt that any more restrictive reading of Title 

III’s coverage, even ifthe Court accepted the “clients orcustomers” limitation, would be inconsistent 

with the literal text of the statute and its expansive purpose. The Court noted that its conclusion on 

this issue is consistent with case law under Title II (the public accommodations title) of the Civil 

Rights Act of 1964 that had found golfers and golf tournaments to be covered. 

Having ruled that Mr. Martin was entitled to be protected from discrimination on the basis of 

disability when participating in PGA Tour golf tournaments, the Court then turned its attention to 

the question whether permitting Martin to use a golf cart would constitute a fundamental alteration. 

Under ADA, a covered public accommodation must make “reasonable modifications in policies, 

practices, or procedures”unless the covered entity can “demonstrate that making such modifications 

would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or 

accommodations” it provides. 42 U.S.C. § 12182(b)(2)(A)(ii) (emphasis added). The Court found 

40

that the application of this requirement entails three inquiries: “whether the requested modification 

is “reasonable,” whether it is “necessary” for the individual with a disability, and whether it would 

“fundamentally alter the nature of” the competition.” 121 S.Ct. at 1893 n. 38. The PGA Tour 

conceded that a golf cart was a reasonable modification that was necessary if Martin was to play in 

its tournaments, so only the third of the three inquiries—whether the use of a golf cart would 

fundamentally alter the nature of PGA Tour golf competitions—was left for the Court to resolve. 

The Court declared that a modification of the golf tournaments might constitute a fundamental 

alteration in two different ways. First, it might alter such an essential aspect of the game of golf that 

it would be unacceptable even if it affected all competitors equally. The Court suggested that 

changing the diameter of the hole from three to six inches might be such a modification. Second, a 

modification having a lesser impact on the game itself might give a player with a disability an 

advantage over others and in that way fundamentally alter the character of the competition. The 

Supreme Court ruled that waiving the walking rule for Martin would not work a fundamental 

alteration in either sense. 

The Court found that the essence of golf is “shot-making—using clubs to cause a ball to progress 

from the teeing ground to a hole some distance away with as few strokes as possible.” Id. at 1893-94. 

It also recognized that golf carts are officially permitted in a variety of golf competitions, including 

tournament settings such as the Senior PGA Tour, the open qualifying events for PGA Tour’s 

tournaments, the first two stages of the Q-School, (and, until 1997, the third stage of the Q-School 

as well), and even certain tournament rounds in both the PGA Tour and the Nike Tour. The Court 

concluded, therefore, that the walking rule is not an essential attribute of the game. The PGA Tour 

argued, however, that the walking rule was essential to the highest levels of golf, because at that 

level assessing and comparing the performance of different competitors is meaningful only if the 

competitors are subject to identical substantive rules. It contended that the walking requirement was 

intended to inject the element of fatigue into the contests of shot-making skill, and that it might be 

“outcome-affecting” in the sense that it might result in the critical loss of a stroke. 

The Court was not convinced that golf was such an exact, pure contest of shot-making skills that it 

required precisely identical conditions for each competitor. The Court noted that changing weather 

conditions could produce harder greens and more head winds for one player than another, and even 

that “[a] lucky bounce may save a shot or two.” Id. at 1895. Thus pure chance could have a greater 

impact on the outcome of elite golf tournaments than the fatigue resulting from PGA Tour’s walking 

rule. Moreover, the Supreme Court noted that the district court had found, based on the evidence it 

received, that the fatigue from walking during the PGA Tour’s four-day tournaments cannot be 

deemed significant. The Court also noted expert testimony that golf is a low intensity activity, and 

that fatigue from the game is primarily a psychological phenomenon resulting principally from stress 

and motivation. It recognized other evidence demonstrating that, when given the option of using a 

cart, the majority of golfers in PGA Tour tournaments had chosen to walk. 

The Court found, however, that even if it accepted the PGA Tour’s contention that its walking rule 

is “outcome affecting” because fatigue may affect performance, it would not excuse the PGA Tour 

from making the reasonable modification Mr. Martin was requesting without a showing that the use 

41

of a cart would, for him with his particular condition, give him an advantage over other competitors. 

The Court found that the reasonable modification provision of Title III requires an individualized 

inquiry whether a specificmodification for a particular person’s disability would work a fundamental 

alteration. The PGA Tour had refused to consider Martin’s personal circumstances in deciding 

whether to accommodate his condition. In light of the district court’s finding that Martin “easily 

endures greater fatigue even with a cart than his able-bodied competitors do by walking,” 994 

F.Supp. 1242, 1252 (D.Or. 1998), the Supreme Court held that the purpose of the walking rule would 

not be compromised “in the slightest” by allowing Martin to use a cart. It declared that “[a] 

modification that provides an exception to a peripheral tournament rule without impairing its 

purpose cannot be said to `fundamentally alter’ the tournament.” 121 S.Ct. at 1897. 

The Court recognized that the waiver of “an essential rule of competition” for anyone could 

fundamentally alter the nature of PGA Tour’s tournaments, but the walking rule was “at best 

peripheral” to the nature of the events, and thus can be waived in individual cases without working 

a fundamental alteration. Id. at 1896. The Court characterized the Tour’s claim that all the 

substantive rules for its highest-level competitions are sacrosanct and cannot be modified under any 

circumstances as essentially a contention that it is exempt from Title III’s reasonable modification 

requirement. Id. ADA, however, does not carve out any exemption for elite athletics; on the contrary, 

it explicitly covers golf courses and places of “exhibition or entertainment.” 42 U.S.C. § 

12181(7)(C), (L). Any questioning of the appropriateness of having courts apply the reasonable 

modification requirement to athletic competition is, said the Court, a complaint that should be 

directed to Congress,not to the Court. The Court flatly rejected dissenting Justice Scalia’s contention 

that all rules of sports games are arbitrary and that no one, including the courts, can determine them 

to be nonessential if the rulemaker deems them essential. It stated that whatever merit Justice 

Scalia’s “post-modern view” of sport may have, Congress clearly did not incorporate it in Title III 

of ADA, and did not give sports organizations “carte-blanche authority to exempt themselves from 

the fundamental alteration inquiry” by deeming any rule to be essential—an approach that would 

make the statutory word “fundamentally” superfluous, because alteration of any rule governing an 

event at a public accommodation might be considered a fundamental alteration. Id. at 1897. 

The Court admitted that ADA imposes some administrative burdens on the operators of places of 

public accommodation that could be avoided by strictly adhering to general rules and policies. But 

it was convinced that Congress intended that an entity like the PGA should give individualized 

attention to the handful of requests that it might receive from athletes with disabilities for a 

modification or waiver of a rule to allow them access to the competition, and also should carefully 

weigh the purpose, as well as the letter, of the rule before deciding that no accommodation would 

be tolerable. The Court concluded that in light of such obligations under ADA, Martin’s request for 

a waiver of the walking ruleshould have been granted. The Court affirmed the judgment of the Ninth 

Circuit. 

Justice Scalia submitted a fierce dissenting opinion, in which he was joined by Justice Thomas. He 

argued that the majority’s ruling distorted the text of Title III, the structure of ADA, and common 

sense. In his view, Title III was intended to provide protection only to customers and clients as 

distinguished from employers and independent contractors. And he argued that professional golfers 

42

are not customers of public accommodations because they are not using such places in order to enjoy 

the goods, services, facilities, privileges, advantages, or accommodations these places provide, but 

rather to earn money. In short, they are selling recreation or entertainment, not buying it. 

Accordingly, in Justice Scalia’s view, professional athletes should not be protected from 

discrimination under Title III. 

Justice Scalia also argued that Title III guarantees only “access” to the goods, services, facilities, 

privileges, advantages, or accommodations provided by public accommodations and does not 

regulate the content of the goods or services offered. He characterized golf competitions as such a 

service, whose content ADA does not address. In his view, the PGA Tour could not deny Mr. Martin 

access to its events because of his disability, but it was not required to provide him a game different 

(whether in its essentials or in its details) from that offered to everyone else. 

Turning to the fundamental alteration issue, Justice Scalia argued that all games are “entirely 

arbitrary,” and that “there is no basis on which anyone—not even the Supreme Court of the United 

States—can pronounce one or another of them to be ‘nonessential’ if the rulemaker (here the PGA 

Tour) deems it to be essential.” Id. at 1902. He called it “incredibly silly and incredibly difficult” for 

the Court to determine whether walking is a fundamental or essential aspect of golf, and suggested 

that the Court should have declined to do so “either out of humility or out of self-respect.” Id. at 

1902-03. In addition, he took strong issue with the majority’s ruling that the existence of a 

fundamental alteration should be determined on the basis of individualized factual findings. He 

contended that ADA seeks to assure only equal access to competitive sporting events, not an equal 

chance to win, and that the managing bodies of competitive sports should not have “to take account 

of the uneven distribution of God-given gifts when writing and enforcing the rules of competition.” 

Id. at 1904. In Justice Scalia’s view, the question whether the PGA Tour should have voluntarily 

granted Mr. Martin a waiver of the walking rule was a close one, but such a waiver should not be 

imposed as a legal requirement. 

Within a week after issuing its decision in PGA Tour, Inc. v. Martin, the Supreme Court vacated the 

judgment of the Court of Appeals for the Seventh Circuit in the Olinger v. United States Golf Assn. 

case, and remanded it tothe Seventh Circuit for further consideration in light of the Supreme Court’s 

ruling in Martin. Olinger v. United States Golf Ass’n, 121 S.Ct. 2212 (2001). 

L. TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. v. WILLIAMS 

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002). 

In 1990, Toyota Motor Manufacturing, Kentucky, Inc., hired Ella Williams to work on an engine 

assembly line at its car manufacturing plant in Georgetown, Kentucky. Soon after she began to work 

with pneumatic tools, Ms. Williams developed carpal tunnel syndrome and tendinitis that caused pain 

in both of her hands,wrists, and arms. Her personal physician placed her on permanentwork restrictions 

that precluded her from lifting more than 20 pounds, from frequent lifting of even lighter objects, from 

constant repetitive motions of her wrists or elbows, from performing overhead work, and from using 

43

vibratory or pneumatic tools. As a result, Toyota assigned Ms. Williams to various modified duty jobs. 

Eventually she was assigned to work as part of a Quality Control Inspection Operations team, where she 

routinely performed two of the four tasks of the team, both of which involved visual inspection. After 

two years duringwhichMs.Williamshad satisfactorilyperformed these tasks,Toyotadecided that teams 

should rotate through all four of the Quality Control Inspection tasks. Accordingly, Ms. Williams was 

ordered to apply a substance called highlight oil to several parts of cars as they passed on the assembly 

line, which required her to hold her hands and arms up around shoulder level for several hours at a time. 

As a result, she began experiencing pain in her neck and shoulders, and was diagnosed as having several 

medical conditions (including myotendinitis, myositis, and thoracic outlet compression) that cause 

inflammation and pain in the arms and shoulders. 

Ms. Williams filed an ADA claim with the EEOC, alleging that Toyota had failed to provide her with 

a reasonable accommodation asrequired under the ADA. The district court granted summary judgment 

to Toyota and found that Ms. Williams' impairments did not qualify as a "disability" under the ADA 

because they did not substantially limit any major life activity, she did not have a record of a disabling 

condition, and Toyota had not regarded her as having a disability. The Court of Appeals for the Sixth 

Circuit reversed, holding that Ms. Williams' impairments substantially limited her in the major life 

activity of performingmanual tasks. The courtsaid that the propertestwas whetherWilliamshad shown 

that her manual disability involved a class of manual activities affecting the ability to perform tasks at 

work. Since her ailments prevented herfrom doing the tasks associatedwith certaintypes ofmanual jobs 

thatrequired the gripping oftools and repetitivework with hands and arms extended at or above shoulder 

levels for extended periods of time, the Sixth Circuit ruled that Williams had satisfied the standard for 

having a disability under the ADA. 

In a unanimous decision delivered by Justice O'Connor, the Supreme Court ruled that the Sixth Circuit 

did not applythe properstandard in determining thatMs.Williamswas disabled undertheADA"because 

it analyzed only a limited class of manual tasks and failed to ask whether [Ms. Williams'] impairments 

prevented or restricted her from performing tasks that are of central importance to most people's daily 

lives." 122 S.Ct. at 686. The Court noted that only the major life activity of performing manual tasks 

was before it on appeal, and expressed no opinion as to whether Ms. Williams' limitations on working, 

lifting, and other activitiesthat had been raised in the lower courtswere sufficient to establish a disability 

under the ADA. 

The parties had not contested and the Court accepted that Ms. Williams' conditions constituted 

impairments, but the Court focused on whether the impairments substantially limited Williams in the 

major life activity of performing manual tasks. The Court declared that "`[s]ubstantially' in the phrase 

`substantially limits' suggests `considerable' or `to a large degree.'" Id. at 691, citing WEBSTER'S THIRD 

NEW INTERNATIONAL DICTIONARY 2280 (1976) and 17 OXFORD ENGLISH DICTIONARY 64-67 (2d ed. 

1989). Therefore, the Court ruled, the word "substantial" excludes impairments that interfere in only a 

minor way with performance of manual tasks from constituting disabilities under the ADA. The Court 

44

also stated that "`[m]ajor' in the phrase `major life activities' means important" and so "major life 

activities" refers to "those activities that are of central importance to daily life." 122 S.Ct. at 691, citing 

WEBSTER'S, supra, at 1363. 

In a significant and ominousstatement,the Court indicated, based upon the ADA finding that 43 million 

people have disabilities, that the terms "substantially limited" and "major life activities" "need to be 

interpreted strictly to create a demanding standard for qualifying as disabled ...." 122 S.Ct. at 691. The 

Court reasoned that "[i]f Congress intended everyone with a physical impairment that precluded the 

performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, 

the number would surely have beenmuch higher." Id. Thus, the Court indicated that it would notsuffice 

to try to prove disability merely by submitting evidence of a medical diagnosis of an impairment, but 

would require a further showing that the limitation is substantial in terms of the individual's own 

experience. The Court added that an individualized assessment of the effect of an impairment is 

particularlynecessaryin regardto conditions,such as carpaltunnelsyndrome, having symptomsthat vary 

widely from person to person. The Court noted that under the EEOC's regulations (which the Court 

assumed were valid and reasonable because the parties had accepted that they were, even though the 

Court expressed reservations about their persuasive value), the determination of whether an impairment 

is substantially limiting involves consideration of its nature, severity, and duration. Id. at 690, citing 29 

C.F.R. ?? 1630.2(j)(2)(ii)-(iii)(2001). 

The Court ruled that the Court of Appeals had erred in suggesting that a manual disability must impede 

a class of manual activities and that those activities must be ones that affect the ability to perform tasks 

at work. As to the first, the Supreme Court declared that nothing in the ADA, the regulations, or the 

Court'spreviousrulingssupportsthe application of a class-basedframeworkexceptinregardtothemajor 

life activityof working. Conversely, the SixthCircuitwas alsowrong in limiting its consideration ofthe 

majorlife activityofperformingmanualtasksto onlytasks associatedwithMs.Williams'job. TheCourt 

noted that the definition of disability is applicable not only to employment but to portions of the ADA 

that apply to other subjects such as transportation and public accommodations, and should cover 

individualsinsuchcontextswhetherornottheyhave jobs. Moreover,theCourtobservedthatthemanual 

tasks unique to a particular job are not necessarily important parts of most people's lives. At the same 

time, the SixthCircuit disregarded evidence that Ms.Williamswas able to performtasksinvolved in her 

personal hygiene and some personal and household chores. Yet, according to the Supreme Court, 

"household chores, bathing, and brushing one's teeth are among the types of manual tasks of central 

importancetopeople'sdailylives,andshouldhavebeenpartofthe assessmentofwhether[Ms.Williams] 

wassubstantiallylimited in performingmanual tasks." Id. at 693. Becausethe SixthCircuithad applied 

improper standards in evaluating Ms. Williams' alleged disability, the Court reversed the lower court's 

grant of summary judgment to her. The Court refused, however, to reinstate the district court's original 

grant of summary judgment to Toyota, because Toyota had not sought that result in its appeal to the 

SupremeCourt. Accordingly,theSupremeCourtremanded the caseforfurther proceedingsin the lower 

courts. 

45

M.	 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, 

INC. 

Equal Employment Opportunity Commission v. Waffle House, Inc., 122 S.Ct. 754 (2002). 

In 1994, Eric Baker began working as a grill operator at a Waffle House restaurant. Like all prospective 

Waffle House employees, Mr. Baker was required to sign an application in which he agreed that "any 

dispute or claim" concerning his employment would be "settled by binding arbitration." Sixteen days 

afterstarting to work at the restaurant,Mr.Baker had a seizure at work. Shortlythereafter,WaffleHouse, 

Inc., fired him. Mr. Baker did not initiate arbitration proceedings. He did, however, file a discrimination 

charge with the EEOC alleging that his discharge violated Title I of the ADA. After investigating the 

matter and trying unsuccessfullyto conciliate, theEEOCfiled an enforcementsuitin federaldistrict court 

alleging that Waffle House's employment practices, including its discharge of Mr. Baker, violated the 

ADA and that the violation was intentional and done with malice or reckless indifference to Mr. Baker's 

rights under the ADA. The complaint sought injunctive relief to eliminate Waffle House's unlawful 

employment practices; specific relief designed to make Mr. Baker "whole," including back pay, 

reinstatement, and compensatory damages; and punitive damages for Waffle House's malicious and 

reckless conduct. 

Waffle House filed a petition under the Federal Arbitration Act (FAA) to stay the EEOC's lawsuit and 

compel arbitration, or to have the suit dismissed. The district court denied Waffle House's motion, 

becauseitfound thatMr.Baker's employment contract had not actuallyincluded the arbitration provision. 

On appeal, the Court of Appeals for the Fourth Circuit disagreed with the district court and determined 

that Mr. Baker and Waffle House had entered into a valid and enforceable arbitration agreement. The 

FourthCircuit concluded, however,that becausetheEEOChasindependentstatutory authorityto pursue 

such actions and becausetheEEOCwas not a partyto the employment contract,the arbitration agreement 

did not foreclose the enforcement action. But the Court of Appeals ruled that in these circumstances the 

EEOC was limited to seeking injunctive relief and was precluded from seeking victim-specific, "makewhole" relief, because the FAA policy favoring enforcement of private arbitration agreements required 

giving some effecttoMr.Baker's arbitration agreement. TheFourthCircuitfound that this policy interest 

under the FAA outweighed the EEOC's right to proceed in federal court in situations in which it seeks 

primarily to vindicate private, rather than public, interests. 

In a 6-3 decision delivered by Justice Stevens, the Supreme Court ruled that an arbitration agreement 

between an employer and employeedoes notforeclosetheEEOCfrompursuing victim-specificremedies 

on behalf of the employee. The Court began its analysis by observing that Congress has authorized the 

EEOC,in enforcing theADA's prohibitions against employment discrimination on the basisof disability, 

to exercise the enforcement powers, remedies, and procedures set forth in Title VII of the Civil Rights 

Act of 1964. In 1991, Title VII was amended to give the EEOC the status of "a complaining party," to 

46

give EEOC authority to bring suit to enjoin an employer from engaging in unlawful employment 

practices,and to pursue reinstatement,backpay, and compensatory or punitive damages,in bothTitleVII 

and ADA actions. Accordingly, theCourt observed, "these statutes unambiguouslyauthorize the EEOC 

to obtain the relief it seeks in its complaint sought if it can prove its case ...." 122 S.Ct. at 760. 

In prior decisions, the Court had recognized that the EEOC's enforcement role and an individual 

employee's private cause of action were not on the same footing. Against the background of these civil 

rights statutes and judicial precedents, the Court examined the impact of the Federal Arbitration Act 

(FAA). Originallyenacted in 1925, theFAAannounced a federalpolicy favoring arbitration agreements; 

its central purpose was to give arbitration agreements the same status as other contracts, thus reversing 

the traditional hostility to such agreements in English and American law. The FAA provides for stays 

of federal court proceedings when a party has failed to comply with an arbitration agreement. The Court 

found, however, that the FAA does not require parties to arbitrate when they have not agreed to do so. 

Because the EEOC was not a party to the arbitration agreement and had not agreed to arbitrate its claims, 

the FAA does not require the agency to relinquish its right to pursue judicial relief, even though the 

employer and employee may have chosen a different process or forum for resolving their disputes. 

The interaction between the civilrightsstatutes and the federal policy favoring arbitration underthe FAA 

presented, in the Court's eyes, a choice between sharp alternatives. Either the plain language of Title VII 

and the contractual arbitration agreementshould be effectuated, giving the EEOCauthorityto pursue the 

fullrange of remedies,or the federal policy favoring arbitration should be held to trump the Title VII and 

contractual provisions,and theEEOCshouldbe barred frompursuing any claimoutside ofthe arbitration 

process. The Court observed that the Fourth Circuit's attempt to devise a "compromise solution" that 

would "split the difference" by allowing the EEOC to pursue injunctive relief but not make-whole 

remedies would turn "what is effectivelya forum selection clause into a waiver of a non-party'sstatutory 

remedies." 122 S.Ct. at 765. This approach, said the Court, "would undermine the detailed enforcement 

scheme created by Congress simply to give greater effect to an agreement between private parties that 

does not even contemplate the EEOC's statutory function." Id. The Court ruled that the EEOC's 

authority for pursuing relief was not under the control of Mr. Baker, nor contingent upon the remedies 

directly available to him: "[t]he statute clearly makes the EEOC master of its own case ...." Id. at 763. 

Since the EEOC's claims under the ADA were neither "merely derivative" nor "a proxy" for those of the 

employee, the Court reversed the judgment of the Fourth Circuit and remanded the case for further 

proceedings consistent with the Supreme Court's opinion. 

Justice Thomas wrote a dissenting opinion in which he wasjoined byChiefJusticeRehnquist and Justice 

Scalia. Justice Thomas stressed that the EEOC brought its action "on behalf of" Mr. Baker, and that any 

damages recovered by the EEOC would be paid to Mr. Baker. Justice Thomas argued that the majority 

was wrong in allowing the EEOC to do something "on behalf of" Mr. Baker that he would not be able 

to do for himself. He contended that such an outcome was contrary to language in Title VII authorizing 

the federal courts to provide "appropriate" relief. He believed that it was not "appropriate" to allow the 

47

EEOC to do on behalf of Mr. Baker something that he was precluded from doing for himself. In Justice 

Thomas's view, the majority was granting to EEOC an authority to determine that victim-specific relief 

is "appropriate," thus usurping a traditional role of courts, "eviscerat[ing]" the arbitration agreement 

entered into by Waffle House and Mr. Baker, and "liberat[ing] Baker from the consequences of his 

agreement." Id. at 772. 

Justice Thomas charged further that the majority's reasoning had no logical or principled stopping point, 

and that it could justify the EEOC in continuing to pursue claims in court even in cases where the 

employee has entered into a settlement agreement with the employer. He argued further that provisions 

in the ADA and in the Civil Rights Act of 1991 encouraging arbitration indicated that Congress did not 

intend the ADA's enforcement scheme to undermine the FAA. 

N. U.S. AIRWAYS, INC. V. BARNETT 

U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002) 

Robert Barnett injured his back working as a cargo handler at U.S. Airways in 1990. He used his 

seniorityrightsto transferto a lessphysicallydemandingmailroomposition. After holding themailroom 

position for some two years, Mr. Barnett heard that it was to be opened to seniority-based employee 

bidding, and that company employees senior to him planned to put in bids. He asked U.S. Airways to 

let him keep his mailroom position by making an exception to the seniority-bidding process to 

accommodate limitations resulting from his disability. U.S. Airways considered the matter for five 

months, but ultimately opted not to grant the exception. 

Upon losing his job, Mr. Barnett filed suit against U.S. Airways under Title I of the ADA. In his 

complaint, Mr. Barnett claimed that as he was an individual with a disability capable of performing the 

essential functions of the mailroom position, that assignment to the mailroom position constituted a 

reasonable accommodation of his disability, and that U.S. Airways was discriminating against him by 

refusing to assign him to that job. The federal district court granted U.S. Airways' motion for summary 

judgment, ruling that varying the seniority policy would result in undue hardship both to the company 

and to its employees without disabilities. The Court of Appeals for the Ninth Circuit reversed the 

decision of the district court, and found that a seniority system is ? merely a factorin the undue hardship 

analysis,? and that the courts must conduct "[a] case-by-case fact intensive analysis ... to determine 

whether any particular reassignment would constitute an undue hardship to the employer." 228 F.3d 

1105, 1120 (9th Cir. 2000) (en banc). 

U.S. Airways appealed to the Supreme Court and asked it to decide whether ? the ADA requires an 

employer to reassign a disabled employee to a position as a reasonable accommodation even when 

another employee is entitled to the position under the employer? s bona fide and established seniority 

system.? 122 S.Ct. at 1520, quoting Brief for Petitioner i. Noting that the circuit courts had drawn 

48

--

different conclusions regarding the legal significance of seniority systems, the Supreme Court agreed to 

decide the matter. 

Writing the opinion for a 5-to-4 Court, Justice Breyer, joined by Justices Rehnquist, Stevens, O'Connor 

and Kennedy, held that the ADA does not ordinarily require the assignment of an employee with a 

disability to a particular position to which another employee is entitled under an employer's established 

seniority, but might in special circumstances. U.S. Airways had argued that a seniority system always 

takes priority over accommodation, because the ADA does not require employers to engage in 

"preferential treatment" of employees with disabilities and that making exceptions to a seniority system 

wouldconstitutepreferentialtreatment. TheCourtrejectedthis argument and ruled that "preferenceswill 

sometimes prove necessary to achieve the Act's basic equal opportunity goal." 122 S.Ct. at 1521. The 

Court indicated that reasonable accommodations constitute a form of "preference" required for workers 

with disabilities under the ADA, one that is necessary to offer them the same workplace opportunity as 

other employees. Thus, the Court rejected any "automatic exemption" of seniority rules, and declared: 

The simple fact that an accommodation would provide a "preference" in the sense that it would 

permit the worker with a disability to violate a rule that others must obey -- cannot, in and of 

itself, automatically show that the accommodation is not "reasonable." 

Id. 

The Court also dismissed U.S. Airways' argument that use of the words ? reassignment to a vacant 

position? in the ADA provision recognizing reassignment as a form of reasonable accommodation (42 

U.S.C ? 12111(9)(B))precludedreassignmentinthiscasebecausethepositionMr.Barnettoccupiedwas 

not vacant. The Court found that ? vacant? had no special meaning in these circumstances, and, since 

the position Barnett held was "open" for bidding under the seniority system, it could be subject to the 

reasonable accommodation requirement. 

On the other hand, the Court rejected Mr. Barnett? s contention that reasonable accommodation should 

be interpreted as ? effective accommodation,? meaning an accommodation that enables a person with 

a disability to perform the essential functions of a position. The Court found that "reasonable" does not 

mean "effective," and that it is the word "accommodation," not the word "reasonable," that conveys the 

need for effectiveness. Thus, an accommodation could be unreasonable in its impact even though it 

might be effective in facilitating performance of essential job functions; the Court ruled that the ADA 

does not "demand action beyond the realm of the reasonable.? Id. at 1523. 

The Court adopted a burden-shifting approach to the issues of reasonableness of accommodations and 

whether they would impose undue hardships. To overcome an employer's summary judgment motion, 

a plaintiff employee needs only show that an accommodationsseemsreasonableon itsface, "ordinarily 

or in the run of cases." Id. Once the plaintiff meets this burden, the employer has to establish the 

existence of ? undue hardship? in the particular circumstances. The Court found that the lower courts 

49

had used such a framework to successfully resolve the distinction between the concepts of reasonable 

accommodation and undue hardship without rendering them functionally identical in meaning. 

Applying the burden-shifting approachto accommodationsthat conflictwith senioritysystems,theCourt 

found that ordinarilysuch accommodations would not be reasonable. Noting the importance ofseniority 

systemsto employee-managementrelations and employees'expectations of consistent,uniformtreatment, 

the Court ruled that employers should not have to prove on a case-by-casebasisthat its seniority system 

should prevail; when assignment to a position as a proposed accommodation runs counter to a seniority 

system, the Court declared that "it will ordinarily be unreasonable for the assignment to prevail." Id. at 

1524. 

But while theCourt held thatsenioritysystemsshall "ordinarily" take precedenceover accommodations, 

it did not agree with U.S. Airways? position that seniority systems must always prevail over 

accommodationsrequests. TheCourt announcedthat aplaintiffmaydemonstrate"special circumstances" 

under which such an accommodation can be considered reasonable. Id. at 1525. As an example of such 

circumstances,the Court mentioned situations in which other exceptionsto a seniority system are made 

relatively frequently so permitting another to accommodate a worker with a disability would not 

significantly impact the company or workers' expectations. 

To permit the lower courts to apply the principles and procedural framework it had announced, the 

Supreme Court vacated the judgment of the Court of Appeals and remanded the case for further 

proceedings consistent with the Court's opinion. 

TheCourt's 5 to 4majoritywas by the narrowestofmargins;JusticeO'Connorfiled a concurring opinion 

in which she disclosed that she was troubled by some of the reasoning in the majority opinion and was 

joining it onlybecausehervotewasneededfor anymajoritystandard to emerge. JusticeO'Connorstated 

that ? if each member voted consistently with his or her beliefs, [the Court] would not agree on a 

resolution of the question presented in this case.? 122 S.Ct. at 1526 (O'Connor, concurring). Because 

she considered it important for a majority of the Court to agree on a rule when interpreting statutes, and 

because she expected that the standard announced by the Court would generally achieve the same 

outcomes as her interpretation, she joined the Court? s opinion. In her own view, however, Justice 

O'Connor would have held that a seniority system would only render a job reassignment as an 

accommodation underthe ADAunreasonableifthe senioritysystemwaslegallyenforceable. She noted 

that in the U.S. Airways? Personnel Policy Guide for Agents, the document that contains its seniority 

policy, states that it is "not intended to be a contract (express or implied) or otherwise create legally 

enforceable obligations." 122 S.Ct. at 1527. Since U.S. Airways' seniority policy was not legally 

enforceable, the mailroom position should have been considered vacant, and Mr. Barnett? s continued 

mailroom assignment would be a reasonable accommodation. 

50

Justice Stevens filed a concurring opinion to identify some issues that in his view would need to be 

resolved by the lower courts to determine whether the accommodation requested by Mr. Barnett was 

reasonable. He believed that Mr. Barnett would have to meet the burden of favorably answering the 

following questions to overcome the presumption that U.S. Airways' seniority system justified his 

discharge: 

(1)whetherthemailroomposition held by [Barnett]becameopen for bidding merely in response 

to a routine airline schedulechange, or asthe direct consequence ofthe layoff ofseveralthousand 

employees; (2)whether[Barnett]'srequested accommodation shouldbe viewedas an assignment 

to a vacant position, or as the maintenance of the status quo; and (3) exactly what impact the 

grant of [Barnett]'s request would have had on other employees. 

122 S.Ct. at 1526 (Stevens, concurring) (footnotes omitted). 

Justice Scalia wrote a dissenting opinion in which he was joined by Justice Thomas, and Justice Souter 

wrote a dissent in which he wasjoined by Justice Ginsburg. The reasoning ofthe two dissenting opinions 

was almost directly opposite one another. Justice Scalia would have ruled that seniority system should 

always take precedence over assignment to a position as a reasonable accommodation. In his view, 

reasonable accommodation under the ADA should only apply to "disability-related obstacle[s]," that is, 

to "barriers that would not be barriers but for the employee's disability." 122 S.Ct. at 1529. In his 

analysis,bona fide senioritysystems are neutralworkplace rulestowhich the reasonableaccommodation 

requirement should not apply. Justice Souter, on the other hand, would have held that ADA does not 

exempt seniority rules from the reasonable accommodation requirement. He agreed with the Ninth 

Circuit that a seniority system derived from collective bargaining is only ? a factor? in determining 

? reasonableness.? In this case, however, U.S. Airways' seniority system was not even the product of 

collective bargaining, it was revocable at will, Mr. Barnett had already held the position for two years, 

and continuation of the placement would have caused minimal disruption to U.S. Airways' operations. 

Accordingly,in JusticeSouter's viewthe senioritysystemwas ofminimalrelevance andMr.Barnetthad 

metthe burdenof proving the accommodationwasreasonableonitsface. JusticeSouterwouldhaveheld 

that the burden now shifted to U. S. Airways to demonstrate that Barnett's requested accommodation 

would result in an undue hardship. 

O. CHEVRON U.S.A. INC. V. ECHAZABAL 

Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002) 

Mario Echazabal had worked in the coker unit of an oil refinery in El Segundo, California, owned by 

Chevron U.S.A. Inc., since 1972. In the coker unit, waste oil is recycled into usable chemicals; the air 

intheunitis commonlycontaminatedwithsolventsandotherpotentiallytoxicchemicals. Mr.Echazabal 

didnotwork directlyforChevron, butratherforindependent contractorsoperatingatthe facility. On two 

occasions, he applied for a job directly with Chevron, which made an offer to hire him conditioned on 

his passing the company's physical examination. The physical exams showed that Mr. Echazabal had 

51

--

liver damage, eventually determined to be the result of Hepatitis C. Chevron's doctors said that the liver 

damage would be aggravated by continued exposure to toxins at the refinery. Chevron withdrew its job 

offers, and the second time it asked the contractor employing Mr. Echazabal either to reassign him to a 

job without exposure to harmful chemicals or to remove him from the refinery altogether. In 1996, the 

contractor terminated Mr. Echazabal. 

Mr. Echazabal sued Chevron, claiming, among other things, that the company violated the ADA by 

refusing to hire him, and by refusing to permit him to continue working in the refinery, because of a 

disability-- hisliver condition. Chevron contended its actions were permissibleunder a regulation ofthe 

EqualEmploymentOpportunityCommission (EEOC)recognizing as a permissiblequalification standard 

a requirement that a worker's disability on the job not pose a "direct threat" to his health. 29 C.F.R. ? 

1630.15(b)(2) (2001). Two medical witnesses testified on Mr. Echazabal's behalf that his liver function 

was not impaired and subject to further damage under the job conditions in the refinery, but the district 

court granted summary judgment in Chevron's favor. The district court held that Mr. Echazabal raised 

no genuine issue of material fact as to whether the company acted reasonably in relying on its own 

doctors' medical advice, whether or not that advice was accurate. 

On appeal, the Court of Appeals for the Ninth Circuit ruled that the EEOC's regulation recognizing a 

threat-to-selfdefenseexceededthe scope ofEEOC's authorityunderthe ADA, and reversed the decision 

of the district court. The Seventh Circuit reasoned that the ADA's recognition only of a defense for 

threats to "other individuals in the workplace" meant that a regulation permitting such a defense for 

threats to self would conflict with congressional policy established in the ADA. 

Justice Souter delivered an opinion on behalf of a unanimous Court that upheld the EEOC threat-to-self 

provision. Mr. Echazabal had argued, first, that the ADA precluded the EEOC from creating a threat-toself defense because the statute did not leave a gap for the agency to fill. In support of this argument, he 

pointed to a "canonofstatutory construction" a ruleestablished by the courtsto guide the interpretation 

of statutes. Judges and lawyers know the particular canon Mr. Echazabal raised by its Latin name: 

expressio unius exclusio alterius. It means "expressing one item of [an] associated group or series 

excludes another left unmentioned." 122 S.Ct. at 2049. The Court ruled that the canon did not apply in 

this case for several reasons. One was that the ADA states broadly that qualification standards "may 

include a requirement that an individual not pose a direct threat to others," 42 U.S.C. ? 12113(b), and 

theCourt concluded that the expansive phrasing of "may include" indicated thatCongresswas not trying 

to make any sort of exclusiveness in mentioning threat to others. Moreover, the Court found that the 

statutory provision at issue here did not omit a part of a series oftwo ormore thingsthatshould normally 

go hand in hand so that the leaving out of one justifies an inference that the omission was intentional. 

The Court did not accept that direct threats to others and direct threats to self are such a natural, closely 

related series. To establish that they were, Mr. Echazabal pointed to a provision of the EEOC's 

Rehabilitation Act regulation that includes an exception for workers who would pose a direct threat to 

others or to self. 29 C.F.R. ? 1613.702(f) (1990). In rejecting the contention that this provision 

52

demonstrated a series of closely related things, the Court noted that the Rehabilitation Act regulations of 

the Department ofJustice, the Department of Labor, and the Department of Health and Human Services) 

did not recognize threats to self along with threats to others. The Court reasoned that the ADA's use of 

language identicalto the earlierstatute,whenCongressknewthat theEEOChad interpreted that language 

to add a threat-to-selfstandard isinconclusive, because it may mean either that Congressmeant to imply 

that the EEOC had been wrong in reading the earlier language to allow it to recognize threats to self, or 

that Congress assumed that the agency was free to do under the ADA what it had already done under the 

Rehabilitation Act's identical language. Given these two possible opposing interpretations, the Court 

found that no negative inference regarding threats to self was warranted. 

TheCourt also considered there to be no apparentstopping point to the argument that the ADA'smention 

of threats to others. It questioned whether Congress's specifying threats to others in the workplace, for 

example,meant that an employer could notrefuse to hire aworkerwhose disabilitywould threaten others 

outside the workplace. With a dramatic flair, the Court posed the following inflammatory question: "If 

Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued 

after being turned away?" Id. at 2051. For all these reasons, the Court concluded that the canon of 

statutory construction did not apply in the circumstances of the case. 

Mr. Echazabal had argued in the alternative that even if the ADA did permit the EEOC some leeway to 

go beyond what was in the literal text of the statute, the regulatory provision doing so was an 

unreasonableinterpretation. Chevron countered that the threat-to-selfprovision wasreasonablebecause 

it protects employers from time lost to sickness, excessive turnover from medical retirement or death, 

litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act 

of 1970 (OSHA), 29 U.S.C. ? 651 etseq. TheCourtfocused only on the concernwithOSHAand found 

that it was sufficient to establish the reasonableness of the provision. Mr. Echazabal had pointed out that 

"there is no known instanceofOSHAenforcement,or eventhreatenedenforcement,againstan employer 

who relied on the ADAto hire a worker willing to accept a risk to himselffrom his disabilityon the job." 

Id. at 2052. But the Court stated that an employer who hired an employee in such circumstances "would 

be asking for trouble ...." Id. The Court considered it appropriate for the EEOC to resolve the potential 

tension between the policy in the ADA ensuring an individual with a disability's right to work on equal 

terms in the workplace with the "competing policy" of OSHA to ensure the safety of each worker, by 

adopting a threat-to-self provision. Id. 

Mr. Echazabal also contended that the provision was an unreasonable interpretation because it allows 

employers to impose "overprotective rules and policies," 42 U.S.C. ? 12101(a)(5), and other forms of 

workplace paternalism that the ADA prohibits. In the Court's view, however, the ADA was not aimed 

at employers' refusals to place workers with disabilities in real, specifically demonstrated risks, but 

addressedrefusalsto "give an evenbreakto classesof disabled people,whileclaiming to actfortheirown 

good in reliance on untested and pretextual stereotypes."Id. In essence, the Court viewed the ADA as 

addressing employers'protectivenesstoward employees only when it is "sham" protectivenessbased on 

53

false stereotypes about classes of disabilities. The Court noted that the EEOC provision provides that the 

direct threat defense must be "based on a reasonable medical judgment" supported by "the most current 

medical knowledge and/or the best available objective evidence," and must involve an "individualized 

assessment of the individual's present ability to safely perform the essential functions of the job," that 

considers how imminent the risk is and how severe the harm would be. 29 C.F.R. ? 1630.2(r) (2001). 

TheCourtfound thatsuch a particularized inquiry into the harmsthe employeewouldprobablyfacewas 

a reasonableway to prohibitworkplacepaternalismwhileatthe sametime allowing employersto protect 

workers from specific, documented risks. 

Finally,Mr.EchazabalarguedthatEEOC'sprovisionwouldmake thedirectthreatprovisionofthe statute 

meaningless "surplusage." The Court responded that the mere fact that the EEOC might have adopted 

a threat-to-others rule did not mean that the statutory delineation of such a rule did not accomplish 

anything. The statutory rule made sure that such a standard would exist, and avoided administrative and 

legal battles regarding it. In the Court's view, the statutory provision established a threat-to-others 

standard and left open the possibilitythat the EEOC might go a step further and establish a threat-to-self 

standard. In the eyes of the Court, such a statutory provision may not have been indispensable, but it was 

a useful thing for Congress to have done. 

Having rejected all of the arguments asserted on Mr. Echazabal's behalf against EEOC's threat-to-self 

provision, the Supreme Court reversed the judgment of the Court of Appeals and remanded the case for 

further proceedings consistent with the Supreme Court's opinion. 

P. BARNES V. GORMAN 

Barnes v. Gorman, 122 S.Ct. 2097 (2002) 

Jeffrey Gorman, who uses a wheelchair due to paraplegia, got into a fight with a bouncer at a nightclub 

in Kansas City, Missouri, in May 1992. Police officers who responded to the incident arrested Mr. 

Gorman on a charge of trespass. Before a police van arrived to transport him to the police station, Mr. 

Gorman asked for permission to use a restroom to empty his urine bag, but the police officers refused. 

When the vehicle arrived, it was not equipped for wheelchairs. Although Mr. Gorman objected, police 

officers took him out of his wheelchair and strapped him to a narrow bench in the rear of the van, 

securing himwith a seatbelt and his own belt. On the way to the police station, Mr. Gorman released his 

seatbelt because he believed it was putting to much pressure on his urine bag. When the other belt came 

loose, Mr. Gorman fell to the floor of the van, injuring his shoulder and back, and causing his urine bag 

to rupture. The officer driving the van found it impossible to lift Mr. Gorman, and fastened him to a 

supportforthe restofthe tripto the station. Upon arrival,the police booked, processed, and then released 

Mr. Gorman. He was eventually convicted of misdemeanor trespass. The events surrounding Mr. 

Gorman's arrest caused him serious medical problems,including a bladderinfection,seriouslower back 

54

pain, and uncontrollablespasmsin his paralyzed areas. Togetherthese problems caused himto be unable 

to work full time. 

Mr. Gorman filed a lawsuit against members of the Kansas City Board of Police Commissioners, the 

chief of police, and the officer who drove the van claiming that they had violated his rights under Title 

II of the ADA and Section 504 of the Rehabilitation Act. He contended that they had discriminated 

against him on the basis of his disability because they did not have appropriatepolicies for the arrest and 

transportation of persons with spinal cord injuries. 

After a trial, the jury found the police officials had violated the ADA and Section 504, and awarded Mr. 

Gorman more than $1 million in compensatory damages and $1.2 million in punitive damages. The 

District Court judge vacated the punitive damages part of the verdict, ruling that punitive damages are 

not availablein suits under ? 202 ofthe ADA and Section 504 oftheRehabilitation Act. On appeal,the 

Court of Appeals for the Eighth Circuit reversed the district court judge's denial of punitive damages. 

The EighthCircuit based itsruling on language in the SupremeCourt's decision in Franklin v. Gwinnett 

CountyPublicSchools, 503U.S. 60, 70-71 (1992),inwhich theCourtstated a "generalrule" that "absent 

clear direction to the contrary by Congress, the federal courts have the power to award any appropriate 

reliefin a cognizablecause of action brought pursuant to a federalstatute." The EighthCircuitreasoned 

that punitive damages were an integral part ofthe judicial arsenal ofremedies,and thatCongresshad not 

done anything to change this tradition in enacting or amending the ADA and Section 504. 257 F.3d 738, 

745, 747 (8th Cir. 2001). 

The Supreme Court ruled unanimously that punitive damages were not available to Mr. Gorman under 

either Section 504 or Title II of the ADA. The Court began its analysis by noting that Section 203 of the 

ADA provides that the remedies for violations of ? 202 (the prohibition of discrimination by state and 

local government entities)are the same remedies as provided in ? 505(a)(2)oftheRehabilitationActfor 

violations of Section 504. 42 U.S.C. ? 12133. Section 505(a)(2) of the Rehabilitation Act, in turn, 

providesthat the remediesfor violations of Section 504 shall be the same asthose in TitleVI oftheCivil 

Rights Act of 1964. 29 U.S.C. ? 794a(a)(2). As a result, the remedies for violations of ? 202 of the 

ADA and ? 504 ofthe Rehabilitation Act are coextensive with the remedies available in a private cause 

of action brought under Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination 

in federally funded programs and activities. 42 U.S.C. ? 2000d et seq. 

The Supreme Court stated that it had not previously resolved the issue of what remedies are available in 

private lawsuits under Title VI. The Court declared that Title VI is Spending Clause legislation, enacted 

pursuant to Congress's power under the Constitution to raise and spend federal money. The Court stated 

that legislation that places conditions on the grant of federal funds should be considered "much in the 

nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed 

conditions." 122S.Ct. at 2100-01, quoting PennhurstStateSchool andHospital v.Halderman, 451U.S. 

1, 17 (1981). TheCourt held thatwhilenot all contract-lawruleswouldautomaticallyapplytoSpending 

55

Clause legislation, it is appropriate to apply contract analysis to questions about damages remedies 

available in private lawsuits under such legislation. 

The Court held that recipients of federal funds should only be liable for remedies to which they were 

provided reasonable notice they would be subjecting themselves, either by explicit reference in the 

legislation or as part of traditional remedies for breaches of contract. Legal rules applicable to breaches 

of contract generally do not authorize punitive damages. Nor, said the Court, should punitive damages 

be considered as implicitly authorized either from language of Title VI or from community standards of 

fairness. The Court termed punitive damages as constituting "unorthodox and indeterminate liability," 

and considered it unlikely that funding recipients would subject themselves to such liability. 122 S.Ct. 

at 2102. 

The Court argued that the disallowance of punitive damages under Title VI is not inconsistent with the 

traditional rule that federal courts are empowered to use "any availableremedy" to make good the wrong 

done in a violation of a federal law. Id., quoting Bell v. Hood, 327 U.S. 678, 684 (1946). The Court 

concluded that compensatory damages were adequate to right the wrong done in violations of Spending 

Clause legislation. 

Having concluded that punitive damages may not be awarded in private causes of action brought under 

Title VI, the Court reasoned that such damages were therefore unavailable for violations of ? 202 ofthe 

ADA or of Section 504 of the Rehabilitation Act of 1973. The Court reversed the judgment of the Eighth 

Circuit. 

All of the Justices were in agreement that the Eighth Circuit had erred, and that Mr. Gorman was not 

entitled to punitive damages. There was some disagreement, however, regarding some aspects of the 

opinion for the Court. Justice Souter, joined by Justice O'Connor, signed onto the Court's opinion, but 

wrote a separate concurring opinion to declare their view that the majority's opinion should be read as 

permitting the possibility that the contract law analogy might not resolve all issues regarding damages 

under Spending Clause legislation. As a particular example of an issue that would not necessarily be 

resolved by contract analysis, Justice Souter mentioned the question of how compensatory damages are 

measured. 

Inamore substantialdifferenceofopinionwiththemajority,JusticeStevens,joinedbyJusticesGinsburg 

and Breyer, concurred with the judgment of the Court but not with its opinion, and wrote a separate 

opinion to explain the areas of disagreement. Justice Stevens believed that the majority had employed 

an unnecessaryand overlybroadline ofreasoningin ruling that violations ofSpendingClause legislation 

should be subject to contract law analysis. He would have ruled instead that punitive damages are not 

available from municipalities (and their officials) except where Congress clearly intended to authorize 

them. Justice Stevens objected to the majority's expansion of the Pennhurst State School and Hospital 

v. Halderman, 451 U.S. 1 (1981), precedent, a case involving Spending Clause legislation, to Title II of 

56

the ADA, which is not. He also took issue with the Court's reliance on what had been, he termed "at 

most, a useful analogy to contract law" and contended that the majority's approach "has potentially 

far-reaching consequences that go well beyond the issues briefed and argued in this case." 122 S.Ct. at 

2104. Since he would have held Mr. Gorman was precluded from punitive damages on a narrower 

ground,Justice Stevens, along with JusticesGinsburg andBreyer, agreedwith the judgment oftheCourt, 

but not with its opinion. 

III. SOME SIGNIFICANT IMPLICATIONS OF THE DECISIONS 

A. Overview 

The overallimpact ofthe ADAdecisions oftheUnitedStates SupremeCourt to date can be viewed from 

various perspectives. Examining the results according to which Title of the ADA was at issue reveals 

thattheCourtdecidedcasesunderTitleIII(publicaccommodations)in favoroflitigantswithdisabilities, 

ruled about evenly for and against litigants with disabilities in cases under Title II (activities of state and 

localgovernments), andcamedown againstlitigantswithdisabilitiesina significantmajorityofthe cases 

under Title I (employment). The decisions can also be divided into categories according to types of legal 

issues raised. Thus, the decisions of the Court interpreting and applying the language of the ADA in 

terms of what things it covers (Pennsylvania Department of Corrections v. Yeskey, Olmstead v. L.C., 

PGA Tour, Inc. v. Martin) have produced results generally favorable to litigants with disabilities. 

Decisionsinterpreting the substantive requirementsof the ADA (Olmstead v. L.C., U.S. Airways,Inc. v. 

Barnett) have produced mixed results. The Court's rulings on the scope of defenses available under the 

ADA (Bragdon v. Abbott, PGA Tour, Inc. v. Martin, Chevron U.S.A. Inc. v. Echazabal) have also been 

mixed, although, in numerical terms at least, predominantlyfavorable to litigants with disabilities. The 

decisions of the Court addressing the scope of congressional authority to enact civil rights laws (Board 

of Trustees of University of Alabama v. Garrett) and procedural issues, such as attorney's fees 

(Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health and Human Res.) and availability 

of punitive damages (Barnes v. Gorman), that disability rights law shares with other civil rights 

constituencies, have mainly been restrictive of the interests of litigants with disabilities. Finally, cases 

addressing who can invoke the ADA's protection have beenmixed, but increasinglylimiting astime has 

gone on; some have taken an inclusive view of the definition of disability (Bragdon v. Abbott) and who 

is "qualified" (Cleveland v. Policy Management Systems Corp.), but some very significant decisions 

(Sutton v. United Airlines, Murphy v. United Parcel Service, Albertson's, Inc. v. Kirkingburg, Toyota 

Motor Manufacturing, Kentucky, Inc. v. Williams) have taken a highly restrictive view of what it takes 

to demonstrate a disability under the ADA. 

B. Overall Purposes of ADA 

In Olmstead v. L.C., 527 U.S. 581, 589 (1999), the Supreme Court stated: 

ADA, enacted in 1990, is the Federal Government’s most recent and extensive endeavor to 

address discrimination against persons with disabilities. Earlier legislative efforts included 

57

the Rehabilitation Act of 1973, 87 Stat. 355, 29 U.S.C. § 701 et seq. (1976 ed.), and the 

Developmentally Disabled Assistance and Bill of Rights Act, 89 Stat. 486, 42 U.S.C. § 6001 

et seq. (1976 ed.), enacted in 1975. 

The Court added: 

Congress ... set forth prohibitions against discrimination in employment (Title I, § 12111-

12117), public services furnished by governmental entities (Title II, § 12131- 12165), and 

public accommodations provided by private entities (Title III, § 12181-12189). The statute 

as a whole is intended “to provide a clear and comprehensive national mandate for the 

elimination of discrimination against individuals with disabilities.” § 12101(b)(1). 

In Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 801 (1999), the Court observed 

that “[t]he ADA seeks to eliminate unwarranted discrimination against disabled individuals in order 

both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of 

their consequently increased productivity.” 

In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 1889 (2001), the Court discussed the 

origins and major purposes of ADA. It declared: 

Congress enacted ADA in 1990 to remedy widespread discrimination against disabled 

individuals. In studying the need for such legislation, Congress found that “historically, 

society has tended to isolate and segregate individuals with disabilities, and, despite some 

improvements, such forms of discrimination against individuals with disabilities continue 

to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2); see § 12101(a)(3). 

(“[D]iscrimination against individuals with disabilities persists in such critical areas as 

employment, housing, public accommodations, education, transportation, communication, 

recreation, institutionalization, health services, voting, and access to public services”). 

Congress noted that the many forms such discrimination takes include “outright intentional 

exclusion” as well as the “failure to make modifications to existing facilities and practices.” 

§ 12101(a)(5). 

The Court went on to quote with approval Justice Kennedy’s characterization of ADA as “a 

milestone on the path to a more decent, tolerant, progressive society.” Id., quoting Board of Trustees 

of the Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (KENNEDY, J., concurring). 

In U.S.Airways,Inc. v.Barnett, 122 S.Ct. 1516, 1521 (2002), theCourtreferred to "the Act's basic equal 

opportunity goal." Later in the opinion, the Court elaborated: 

The statute seeksto diminish or to eliminate the stereotypical thought processes,the thoughtless 

actions, and the hostile reactions that far too often bar those with disabilities from participating 

fully in the Nation's life, including the workplace. ... These objectives demand unprejudiced 

thought and reasonably responsive reaction on the part of employers and fellow workers alike. 

58

They will sometimes require affirmative conduct to promote entry of disabled people into the


workforce.


Id. at 1522-23.


These statements represent the Court’s recognition of some of the legislative predecessors of ADA 

and summarize the Court’s clear understanding of the overriding objectives of the Act. 

C. Scope of Coverage of ADA 

1. Generally 

In Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) the Supreme Court 

declared: “The fact that ADA’s language applies in situations not expressly anticipated or discussed 

by Congress ‘does not demonstrate ambiguity. It demonstrates breadth.’” This language was 

repeated in PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 1897 (2001). This principle 

could be helpful in any analysis of whether ADA covers any category of enterprises not expressly 

mentioned in the Act. 

In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 1889 (2001), the Court declared: 

After thoroughly investigating the problem, Congress concluded that there was a 

“compelling need” for a “clear and comprehensive national mandate” to eliminate 

discrimination against disabled individuals, and to integrate them “into the economic and 

social mainstream of American life.” S.Rep. No. 101-116, p. 20 (1989); H.R.Rep. No. 101-

485, pt. 2, p. 50 (1990), U.S.Code Cong. & Admin.News 1990, pt. 2, pp. 303, 332. 

In response to such needs, the Court said, “Congress provided that broad mandate” by enacting 

ADA. It added: 

In fact, one of the Act’s “most impressive strengths” has been identified as its 

“comprehensive character,” Hearings on S. 933 before the Senate Committee on Labor and 

Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess., 197 

(1989) (statement of Attorney General Thornburgh) .... To effectuate its sweeping purpose, 

ADA forbids discrimination against disabled individuals in major areas of public life, among 

them employment (Title I of the Act), public services (Title II), and public accommodations 

(Title III). That “Congress enacted ADA in 1990 to remedy widespread discrimination 

against disabled individuals.” It also noted the “comprehensive character” of ADA’s “broad 

mandate” against discrimination on the basis of disability. Id. 

Such statements clearly recognize the broad coverage of ADA. 

2. Title II 

a. Prisons and prisoners 

59

In Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998) the Supreme Court ruled 

that Title II covers state prisons and prisoners. In Barnes v. Gorman, 122 S.Ct. 2097 (2002), theCourt 

decided a case involving a man injured while being transported to a police station after being arrested. 

Mr. Gorman had successfully sued for damages under Title II of the ADA and under Section 504, and 

only the issue of punitive damages was before the Court, so the coverage of the incident by Title II was 

assumed but not specifically addressed. 

b. State treatment facilities and institutions 

In Olmstead v. L.C., 527 U.S. 581 (1999), the Court applied the requirements of Title II to state 

residential treatment programs including institutions. 

3. Title III 

a. Generally 

In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 1889 (2001), the Court found that the 

legislative history of ADA indicates that the concept of public accommodations should be construed 

liberally to afford people with disabilities equal access to the wide variety of establishments 

available to people without disabilities. It applied Title III’s coverage consistently with “its 

expansive purpose.” 121 S.Ct. at 1892. 

b. Dentist’s offices 

In Bragdon v. Abbott, 524 U.S. 624, 629 (1998), the Court applied requirements of Title III to the 

office of a dentist as a “professional office of a health care provider” expressly included within the 

term “public accommodation.” 42 U.S.C. § 12181(7)(F). 

c. Professional sports events and participants in such events 

In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 1890 (2001), the Court found that golf 

courses, professional golf tours, and their qualifying rounds “fit comfortably within the coverage of 

Title III.” The PGA Tour had lost in the lower courts on its contentions that it was a “private club” 

exempt from Title III’s coverage, and that the competitors’ area “behind the ropes” is not a public 

accommodation, and abandoned those contentions before the Supreme Court. The Supreme Court 

ruled also that the golfers who participate in tournaments are members of the class of persons 

protected under Title III, and that Title III protects both spectators at tournaments and players in 

tournaments. Id. at 121 S.Ct. 1892. 

D. What Constitutes a Disability 

1. Generally 

60

In Sutton v. United Airlines, 527 U.S. 471, 478 (1999), the Court summarized the three prongs of 

the definition of “disability” as follows: “to fall within this definition one must have an actual 

disability (subsection (A)), have a record of a disability (subsection (B)), or be regarded as having 

one (subsection (C)).” In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 

(2002),theCourtmade explicita viewthatit had pointed towardin the Sutton v.UnitedAirlines, Murphy 

v. United Parcel Service, Albertson's, Inc. v. Kirkingburg decisions -- that the elements of the definition 

of "disability" in the ADA "need to be interpreted strictly to create a demanding standard for qualifying 

as disabled ...." 122 S.Ct. at 691. The Court based this conclusion on the ADA finding that 43 million 

people have disabilities and an ill-founded assumption that Congress intended that only that number of 

people were to be protected by the ADA. The Court's position, that the definition of disability is to be 

construed narrowly, ignores and contradicts indications in the statute and its legislative history that the 

ADAwastoprovide a "comprehensive"prohibition ofdiscriminationbasedondisability, andlegislative, 

judicial, and administrative commentary regarding the breadth of the definition of disability. 

2. Individualized determination of disability 

In Sutton v. United Airlines, 527 U.S. 471, 483 (1999), the Court stated that “whether a person has 

a disability under ADA is an individualized inquiry.” As precedent for this principle, the Court cited 

its decision in Bragdon v. Abbott, 524 U.S. 624, 641-642 (1998), declining to consider whether HIV 

infection is a per se disability under ADA; and ADA Title I regulatory guidance providing that, “The 

determination of whether an individual has a disability is not necessarily based on the name or 

diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of 

the individual.” 29 C.F.R. pt. 1630, App. § 1630.2(j). Actually, the clearest statement about 

individualization in the Bragdon case was in the partially concurring and partially dissenting opinion 

of Chief Justice Rehnquist, joined by Justices Scalia and Thomas, in which he declared: 

It is important to note that whether respondent has a disability covered by ADA is an 

individualized inquiry. The Act could not be clearer on this point: Section 12102(2) states 

explicitly that the disability determination must be made “with respect to an individual.” 

Were this not sufficiently clear, the Act goes on to provide that the “major life activities” 

allegedly limited by an impairment must be those “of such individual.” § 12102(2)(A). 

524 U.S. at 657; see also, 524 U.S. at 664 (Justice O’Connor, concurring in the judgment in 

part and dissenting in part) (agreeing that Abbott’s “claim of disability should be evaluated 

on an individualized basis”). 

In Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999), the Court stated that there was a 

“statutory obligation to determine the existence of disabilities on a case-by-case basis.” It added that 

“[t]he Act expresses that mandate clearly by defining ‘disability’ ‘with respect to an individual,’ 42 

U.S.C. § 12102(2), and in terms of the impact of an impairment on ‘such individual,’ § 

12102(2)(A).” In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681, 692 (2002), 

the Court again reiterated that the determination of the existence of disabilitywasto be made in a "caseby-case manner" through "[a]n individualized assessment of the effect of an impairment ...." 

3. Per se disabilities 

61

Designation of a condition as a per se disability would be very helpful to future litigants and in 

affecting the practices and policies of covered entities. If a condition is so designated, every person 

who has the condition automatically meets the definition of a person with a disability and does not 

have to prove the effect on major life activities in her or his particular circumstances. In Bragdon 

v. Abbott, 524 U.S. 624, 641-42 (1998), the Court ruled that it did not need to address the issue of 

whether HIV is a per se disability. Having stated that it was not going to reach the issue, however, 

the Court then devoted several pages of its opinion to a discussion of regulations, administrative 

interpretations, and prior court decisions supporting the Court’s conclusion that “HIV infection, even 

in the so-called asymptomatic phase, is an impairment which substantially limits the major life 

activity of reproduction.” Id. at 647. This analysis approaches very close to declaring the condition 

to be a per se disability. 

In Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), the Court ruled that monocularity was not 

a per se disability, but indicated that “some impairments may invariably cause a substantial 

limitation of a major life activity.” Id. at 566. The Court thus accepted that some conditions may 

merit per se disability status, but that the Court “cannot say that monocularity does.” Id. The Court 

observed that the condition monocularism encompasses variations on the degree of visual acuity in 

the weaker eye, the age of onset of vision loss, the extent of compensating adjustments in visual 

techniques, and the ultimate scope of the restrictions on visual abilities, and declared: “These 

variables are not the stuff of a per se rule.” Id. In the absence of such a rule, the Court in Albertson’s 

insisted on the normal process under ADA of individualized demonstration of the existence of 

disabilities on a case-by-case basis. But the Court did recognize that per se disability status could 

be appropriate for some conditions. In its decision in Sutton v. United Airlines, 527 U.S. 471 (1999), 

issued on the same day as Albertson’s, the Court stressed the importance of individualized 

determinations of disabilities and of taking mitigating measures into account, 527 U.S. at 483-84, 

but did not preclude the possibility that some conditions might merit per se status. 

In ToyotaMotor Manufacturing,Kentucky,Inc. v. Williams, 122 S.Ct. 681, 692 (2002), the Courtstated 

that carpal tunnel syndrome is a type of impairment "whose symptoms vary widely from person to 

person," making an individualized assessment "particularlynecessary." The Court also observed that it 

isinsufficientforindividualsattempting to prove disabilitystatusmerelyto submit evidenceof amedical 

diagnosis of an impairment; instead, they must offer evidence that the extent of the limitation caused by 

their impairment is substantial in terms of their own experience. Id. at 691. 

4. Major life activities 

a. General meaning 

In ToyotaMotor Manufacturing, Kentucky,Inc. v. Williams, 122 S.Ct. 681, 691 (2002), theCourtstated 

that the word "major" in the phrase "major life activities" means "important." The Court quoted the 

Webster's Dictionary definition of "major" as "greater in dignity, rank, importance, or interest," and 

declared that "`[m]ajor life activities' thus refers to those activities that are of central importance to daily 

life." Id. Accordingly,the standard for determiningwhether an activityis amajorlife activityis whether 

62

or not it is central to daily life. The Court suggested that tasks that do not individually constitute a major 

life activity can constitute a major life activity in combination, if together they comprise an activity that 

is central to daily life. 

b. List not exhaustive 

In Bragdon v. Abbott, 524 U.S. 624 (1998), all nine of the Justices agreed that the list of major life 

activities in ADA regulations is not exhaustive. See 524 U.S. at 639 (“As the use of the term ‘such 

as’ confirms, the list isillustrative, not exhaustive.”); id. at 659 (Chief Justice Rehnquist, concurring 

in the judgment in part and dissenting in part) (“The Court correctly recognizes that this list of major 

life activities ‘is illustrative, not exhaustive’”); id. at 664-65 (Justice O’Connor, concurring in the 

judgment in part and dissenting in part) (“the representative major life activities ... listed in 

regulations relevant to the Americans with Disabilities Act”). 

c. Not limited to public, economic, or daily activities 

The majority in Bragdon also held that major life activities under ADA were not limited to activities 

that have a public, economic, or daily character. The Court declared: “Nothing in the definition 

suggests that activities without a public, economic, or daily dimension may somehow be regarded 

as so unimportant or insignificant as to fall outside the meaning of the word ‘major.’ The breadth 

of the term confounds the attempt to limit its construction in this manner.” Id. at 638. These 

clarifications will guide subsequent determinations of what constitutes a major life activity. 

d. Manual tasks 

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002), the Supreme Court 

reviewed the Sixth Circuit's analysis of whether Ms. Williams was substantially limited in regard to the 

major life activity of performing manual tasks. The Court ruled that the Court of Appeals had 

erroneouslyfocused onwhethershewas ableto performmanualtasksin herjob. TheCourt declaredthat 

"occupation-specific tasks may have only limited relevance to the manual task inquiry." Id. at 693. The 

Court indicated that analysis of limitation on the activity of performing manual tasks should consider 

instead the person's abilityto performpersonal-care tasks and householdchores. TheCourt declaredthat 

"household chores, bathing, and brushing one's teeth are among the types of manual tasks of central 

importance to people's daily lives...." This analysisshould assist persons whose impairments affect the 

performance of self-care and housekeeping tasks to establish that they have a disability under the ADA. 

The Court's reasoning also provides helpful guidance that the analysis of impact on major life activities 

in an employment discrimination case is not limited to looking only atimpact on activitiesrelevantto the 

workplace. 

e. Activities of reproduction and sex 

In Bragdon v. Abbott, 524 U.S. 624 (1998), consideration of Ms. Abbott’s condition focused on 

whether her HIV infection substantially limited the activity of reproduction, which the majority 

found was a “major life activity” under ADA, reasoning that “[r]eproduction and the sexual 

63

dynamics surrounding it are central to the life process itself.” Id. at 638. The Court also found that 

Ms. Abbott’s condition substantially limited her ability to reproduce by causing a significant risk 

that male sexual partners would be infected and a significant risk that the disease will be transmitted 

to her child during pregnancy and childbirth. In future cases, this ruling should be very helpful to 

most persons with HIV trying to establish that they have a disability under ADA. The Court’s 

analysis of the impact on reproduction in Bragdon should clearly apply to all persons for whom 

reproduction is a realistic option. 

There is some ambiguity in the Court’s statement in Bragdon that “[r]eproduction and the sexual 

dynamics surrounding it” are central. Does this mean that sex is itself a major life activity.” The 

Court quoted language from a 1988 opinion of the Office of Legal Counsel of the Department of 

Justice (OLC) referring to “[t]he life activity of engaging in sexual relations.” 524 U.S. at 642-43, 

quoting Application of Section 504 of the Rehabilitation Act to HIV-Infected Individuals, 12 Op. 

Off. Legal Counsel 264, 264-265 (Sept. 27, 1988) (preliminary print). The OLC had stated that 

“[t]he life activity of engaging in sexual relations is threatened and probably substantially limited 

by the contagiousness of the virus.” 12 Op. Off. Legal Counsel at 274. The Court stated that either 

this consideration or the risk of transmission to the infant was “sufficient to render asymptomatic 

HIV infection a handicap ....” 524 U.S. at 643. This indicates that impact on sexual relations is 

sufficient to render HIV a disability, but it is not completely clear whether this is true in and of itself 

or because the limitation on sexual activity will interfere with opportunities for procreation. 

This distinction may be significant for persons with HIV or other conditions who are trying to 

establish disability under ADA and are incapable of procreation, whether because of medical 

problems leading to sterility or menopause or otherwise. To the extent that engaging in sexual 

relations is considered to be a major life activity on its own, such persons should be able to use the 

Bragdon precedent to help establish that HIV or other conditions will substantially limit this major 

life activity. Similarly, the implications of the Bragdon decision as to sexual activity are also not 

entirely clear for gay and lesbian individuals. 

f. Working as a major life activity 

Regulations implementing Section 504 and ADA have consistently included “working” in the list 

of examples of major life activities. In Sutton v. United Airlines, 527 U.S. 471, 492 (1999), the Court 

indicated that it was “[a]ssuming without deciding that working is a major life activity ....” It added 

the following caution: 

We note, however, that there may be some conceptual difficulty in defining “major life 

activities” to include work, for it seems “to argue in a circle to say that if one is excluded, 

for instance, by reason of [an impairment, from working with others] ... then that exclusion 

constitutes an impairment, when the question you’re asking is, whether the exclusion itself 

is by reason of handicap.” Tr. of Oral Arg. in School Bd. of Nassau Co. v. Arline, O.T. 1986, 

No. 85-1277, p. 15 (argument of Solicitor General). Indeed, even the EEOC has expressed 

reluctance to define “majorlife activities” to include working and has suggested that working 

64

be viewed as a residual life activity, considered, as a last resort, only “[i]f an individual is not 

substantially limited with respect to any other major life activity.” 29 C.F.R. pt. 1630, App. 

§ 1630.2(j) (1998) (emphasis added). 

The quoted statement of the Solicitor General was significantly ill-conceived and illogical when it 

was made (No one has ever contended that “exclusion constitutes an impairment,” but rather that 

exclusion because of an impairment demonstrates either that the impairment limited the person’s 

ability to work or that the employer considered the person’s impairment to be substantially limiting). 

It is indeed unfortunate that such deficient legal reasoning, in a brief filed in 1986, influenced the 

Court to doubt the validity of the widely accepted concept of a major life activity of working. 

Hopefully, more carefullyconsidered analysis will ultimately lead the Court to accept the legitimacy 

of the concept in future cases. 

In Murphy v. United Parcel Service, 527 U.S. 516, 523 (1999), the Court likewise assumed without 

deciding that regulations delineating “working” as a major life activity are valid. 

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002), the Court again 

asserted its reluctance to recognize working as a major life activity. The Court declared: 

Becauseofthe conceptual difficultiesinherentin the argumentthatworking couldbe amajorlife


activity, we have been hesitant to hold as much, and we need not decide this difficult question


today.


Id. at 692.


Accordingly, the question still remains an open one. 

g. Other major life activities 

In Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 563 (1999), the Court treated “seeing” as a major 

life activity, after noting that there was no dispute about this issue and that the parties had not 

challenged the validity of EEOC ADA regulations providing that it is a major life activity. Similarly, 

in Sutton v. United Airlines, 527 U.S. 471, 490 (1999), the Court indicated that the plaintiff sisters 

did “not make the obvious argument that they are regarded due to their impairments as substantially 

limited in the major life activity of seeing.” 

In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879 (2001), the Court treated “walking” as 

a major life activity and declared that Casey Martin was “an individual with a disability as defined 

in the Americans with Disabilities Act” because of his condition that interfered with his ability to 

walk. 121 S.Ct. at 1885. The PGA Tour did not contest that Martin was an individual with a 

disability under ADA. Id. at 1886. 

65

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681, 691 (2002), the Court 

recognized, consistently with ADA and Section 504 regulations, that walking, seeing, and hearing, as 

"basic abilities ... central to daily life," are major life activities under the ADA. 

These rulings may provide some help to future litigants who allege that they have limitations on their 

activities of seeing, hearing, or walking. 

5. Substantially limits 

In Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 564-65 (1999), the Court ruled that the Court of 

Appeals had erred in construing “a mere difference” in “an individual’s manner of performing a 

major life activity” as sufficient to establish that the individual’s condition “substantially limits” the 

performance of the activity. The Supreme Court ruled that there has to be a “significant restriction” 

on performance ofa major life activity, not simply a difference in the manner in which the individual 

performs it. 

TheCourt provided additional guidance concerning the meaning of the "substantiallylimits" concept in 

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681, 691 (2002). Drawing upon 

dictionarydefinitions,theCourt declaredthat "substantially" in the phrase"substantiallylimits" suggests 

"considerable" or "to a large degree." It held that the use of the word "substantial" "precludes 

impairments that interfere in only a minor way with the performance of ... tasks from qualifying as 

disabilities." Id. The Court applied as a standard for having a disability that an individual must have an 

impairment that "preventsorseverelyrestricts"the individualfromperformingmajorlife activities. The 

Courtreiterated the proviso established in the EEOC ADA regulation that to be substantiallylimiting an 

impairment's impact must be permanent or long-term. See 29 C.F.R. ?? 1630.2(j)(2)(ii)-(iii) (2001). 

In doing so, even though the Court expressed reservations about what persuasive authority should be 

afforded the EEOC regulations definition provisions, the Court's reference and citation to the duration 

limitation could be interpreted as some measure of support for the EEOC position. The Council has 

criticized the EEOC for creating a duration limitation not found in the statutory language or legislative 

history of the ADA, nor in other federal agencies ADA regulations. See, e.g., National Council on 

Disability, PROMISES TO KEEP: A DECADE OF FEDERAL ENFORCEMENT OF THE AMERICANS WITH 

DISABILITIES ACT 221-222 (2000). 

The Williams Court rejected the approach, applied by the Sixth Circuit, that a class of activities 

comprising a major life activity must be affected for an impairment to be substantially limiting. The 

EEOC has applied, in the context of the major life activity of working, a requirement that an individual 

show inability to perform a "class" or a "broad range" of jobs; the Court said such a requirement should 

not be applied outside the context ofthemajorlife activityof working. Id. at 693. Conversely, the Court 

ruled that, even in a case arising out of allegations of employment discrimination, the determination of 

limitations on othermajorlife activitiesshouldnotfocus only onmanifestations ofthe activitylimitation 

in the workplace. These two positions should assist litigants seeking to establish that they are 

substantiallylimited in major life activities other than working. On the other hand, the Court's arguable 

66

endorsement of EEOC's position that an impairment must impose a permanent or long-term limitation 

provides an additional evidentiary hurdle for complainants to overcome, both in regard to the major life 

activity of working and other major life activities. 

6. Mitigating measures 

A central holding in Sutton v. United Airlines, 527 U.S. 471 (1999), was that corrective and 

mitigating measures should be considered in determining whether an individual has a disability 

under ADA. Indeed, the Court held that “the approach adopted by the agency guidelines—that 

persons are to be evaluated in their hypothetical uncorrected state—is an impermissible 

interpretation of ADA.” Id. at 482. While the Sutton case involved corrective lenses (eyeglasses and 

contact lenses), in Murphy v. United Parcel Service, 527 U.S. 516, 521 (1999), the Court clarified 

that the same principle applied to medication used to treat an otherwise disabling condition. In 

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999), the Court elaborated further that 

mitigating measures encompass, not just artificial aids, such as medications and devices, but also 

measures undertaken, whether consciously or not, with the body’s own systems, including 

subconscious mechanisms for compensating and coping with visual impairments. These rulings 

represented a rejection by the Court of the position on mitigating measures taken by eight of the nine 

circuit courts that had addressed the issue prior to Sutton, and by all three of the executive agencies 

that had issued regulations or interpretive bulletins construing ADA definition. 

The Court has recognized that the mere fact that a person makes use of mitigating measures does not 

automatically mean that the person does not have a disability. In Sutton v. United Airlines, 527 U.S. 

471, 488 (1999), the Court observed that people who make use of corrective devices may still have 

a disability because the device does not correct the condition sufficiently to prevent a substantial 

limitation on a major life activity. And in Murphy v. United Parcel Service, 527 U.S. 516, 521 

(1999), the Court declared: “Petitioner did not seek, and we did not grant, certiorari on whether this 

conclusion was correct. Because the question whether petitioner is disabled when taking medication 

is not before us, we have no occasion here to consider whether petitioner is ‘disabled’ due to 

limitations that persist despite his medication or the negative side effects of his medication.” 

The Web site of the Judge David L. Bazelon Center for Mental Health Law has an insightful paper, 

The Supreme Court’s 1999 ADA Decisions by Jennifer Mathis (updated May 30, 2000) that provides 

a summary of the Sutton, Murphy, and Kirkingburg decisions and presents some advocacy strategies 

for avoiding the negative effects of the decisions; it is found at 

http://www.webcom.com/bazelon/sct99ada.html. 

7. Regarded as having a disability 

In Sutton v. United Airlines, 527 U.S. 471, 489 (1999), the Court recognized that under the third 

prong of the definition of disability “individuals who are ‘regarded as’ having a disability are 

disabled within the meaning of ADA.” The Court indicated that an individual whose impairment is 

effectively corrected by mitigating measures may nonetheless be regarded as disabled by a covered 

entity, and thus disabled under the “regarded as” prong of the definition. The Court noted that 

67

situations in which a person is “regarded as” having a disability can encompass instances in which 

“a covered entity mistakenly believes that a person has a physical impairment that substantially 

limits one or more major life activities,” and in which “a covered entity mistakenly believes that an 

actual, nonlimiting impairment substantially limits one or more major life activities.” Id. In both 

such situations, a covered entity entertains misperceptions about the individual, either that a person 

has a substantially limiting impairment that the person does not have or that a person has a 

substantially limiting impairment when, in fact, the impairment is not so limiting. The Court 

observed that such misperceptions often result from stereotypic assumptions not truly indicative of 

individual ability. 

8. The not-just-one-job standard 

In Sutton v. United Airlines, 527 U.S. 471, 491 (1999), the Court quoted the EEOC’s standard for 

what “substantially limits” means when applied to the major life activity of working: significantly 

restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes 

as compared to the average person having comparable training, skills and abilities. The inability to 

perform a single, particular job does not constitute a substantial limitation in the major life activity 

of working. 29 C.F.R. § 1630.2(j)(3)(i) (1998). 

In the context of the Sutton case in which neither party contested the validity of the EEOC 

regulations, the Court assumed without deciding that the EEOC regulations interpreting the term 

“substantially limits” were reasonable, and applied the EEOC’s not-just-a-single-particular-job 

criterion. Similarly, in Murphy v. United Parcel Service, 527 U.S. 516, 523-24 (1999), the Court 

again assumed without deciding that the EEOC regulations were valid and required a showing of 

inability to perform either a class of jobs or a broad range of jobs in various classes. 

NCD has criticized the EEOC’s formulation of the “single job” exception and court decisions that 

have too readily adopted it wholesale. See, e.g., Promises to Keep: A Decade of Federal 

Enforcement of the Americans with Disabilities Act 213-15 (2000). NCD has noted that the class-ofjobs-or-broad-range-of-jobs and the single-particular-job-is-not-sufficient criteria are not found in 

the statutory language of ADA, and yet were incorporated into ADA Title I analysis by the EEOC. 

NCD believes that judicial precedents the EEOC cited to support these standards in its regulatory 

guidance are of a dubious nature,1 and that the EEOC ignored other applicable judicial precedents, 

68

explicitly mentioned in ADA committee reports, to the contrary.1

 Some legal commentators have 

also been strongly critical of this position of the EEOC.2 

NCD has formally recommended to the EEOC that it should “reorient its policy positions on the 

interpretation of the definition of disability,” “take clear and explicit actions to mitigate the impact 

of its previous restrictive positions,” and “promote, to the maximum extent possible, an inclusive 

interpretation of the scope of ADA protection to extend to all persons whom an employer 

disadvantages because they have a physical or mental impairment.” Id. at 236, Recommendation 36. 

It can be argued that the EEOC limitation to what is substantially limiting in regard to working 

makes at least some sense in the context of the first prong (actual disability) of the definition of 

disability. Whatever the merits of the not-just-one-job standard under the first prong, it is wholly 

inappropriate under the third prong (regarded as). Yet the EEOC regulatory guidance has not made 

this distinction clear. While neither the EEOC Title I regulation nor the regulatory guidance declare 

that being denied or terminated from a single job because of a physical or mental impairment would 

be insufficient to constitute being “regarded as” having a disability under the third prong of the 

definition, the EEOC has engendered confusion, however, by its ambiguous stance on this issue. The 

EEOC has asserted that its interpretation of what is substantially limiting to working is not intended 

to present onerous burdens of evidence and proof on potential plaintiffs. See 29 C.F.R. pt. 1630 App. 

(commentary on § 1630.2(j)); 56 Fed. Reg. 35,728 (1991) (commentary on § 1630.2(j)). It has 

stressed a “myths, fears, and stereotypes” route for proving that an employer regarded an individual 

as having a substantially limiting impairment, and has provided concrete examples of the application 

of the “regarded as” prong of the definition of disability. EEOC, Compliance Manual § 902.5 

(March 1995 guidance memorandum on the definition of disability). But convoluted and confusing 

discussions of proof issues in relation to the “regarded as” prong, and protestations about not placing 

onerous burdens on plaintiffs do not alter the fact that applying a “class of jobs or a broad range of 

jobs” criterion under the third prong of the definition does force complainants to prove what was in 

the employer’s mind when it took an adverse action toward them—a very difficult evidentiary 

burden. 

NCD has contended that “[t]he illogic of permitting employers to terminate a person from a job 

because of a physical or mental condition and then to argue that the condition is not serious enough 

to constitute a disability is starkly apparent.” Promises to Keep: A Decade of Federal Enforcement 

1

 S. Rep. No. 116, 101st Cong., 1 st Sess. 24 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 53-54 (1990) 

(Education & Labor Committee). These reports cite Thornhill v. Marsh , 866 F.2d 1182 (9th Cir. 1989) and Doe v. 

Centinela Hospital, No. CV87-2514 PAR, 57 U.S.L.W . 2034, 1988 WL 81776 (C.D. Cal. June 30, 1988). 2 See, e.g., Richard A . Bales, Once is E nough: Ev aluating Wh en a Person Is Substantially Lim ited in Her A bility to 

Work , 11 Hofstra L ab. L.J. 203, 21 0-11 (1993); R obert L. Bu rgdorf Jr., ‘Substantially Limited’ Protection from 

Disability Disc rimination: Th e Special Tre atment M odel and M iscontructions of the Definition of D isability, 42 

Villanova L . Rev. 409 (19 97); Arlene B. May erson, Restoring R egard for the ‘R egarded as’ P rong: Giving Effect to 

Congressional Intent, 42 Vill. L. Re v. 587 (1997); B onnie Poitras T ucker, The Supreme Court’s Definition Under 

ADA: A Return to the Dark Ages, 52 Ala. L. Rev. 321, 356-61 (2000). 

69

of the Americans with Disabilities Act at 215. In contrast to the ambiguity the EEOC’s position has 

engendered, NCD has observed that a better course is readily apparent: 

It would have been relatively simple, and fully consistent with ADA’s intent to provide a 

comprehensive remedy for discrimination, for the EEOC to have declared that whenever 

complainants show that employers have taken adverse actions against them based on the 

employee’s physical or mental conditions, a presumption is created that the employer 

regarded the person as having an impairment that substantially limits a major life activity. 

Id. 

The parties in the Sutton case, and consequently the Court, assumed that the not-just-one-job limiting 

standard applies under thethird prong and that plaintiffs mustdemonstrate that an employer regarded 

them as unable to perform either a class of jobs or a broad range of jobs in various classes. The 

plaintiff sisters in Sutton contended that United Airlines mistakenly believed their physical 

impairments substantially limited them in the major life activity of working, and had applied a vision 

requirement that precluded them from obtaining the job of global airline pilot, which they argued 

was a class of employment. 527 U.S. at 490. The Court ruled that the position of global airline pilot 

is a single job, so the plaintiffs’ allegations did not support the claim that United regarded them as 

having a substantially limiting impairment. Id. at 493. In this context, the Court assumed without 

deciding that the EEOC’s standards were valid and then applied the not-just-one-job standard under 

the third prong of the definition. Similarly, in Murphy, after assuming without deciding that the 

EEOC regulations are valid, the Court ruled that Murphy showing that he was “regarded as” unable 

to perform the job of mechanic only when that job requires driving a commercial motor vehicle—a 

specific type of vehicle used on a highway in interstate commerce was insufficient to establish a 

genuine issue of material fact that he was regarded as disabled. 527 U.S. at 524. The Court simply 

accepted without discussion that the EEOC’s “class of jobs or a broad range of jobs” standard 

applied under the third prong of the definition. 

Although the Court in Sutton and Murphy only assumed arguendo (for the purpose of argument in 

the particular case) that the EEOC standards are valid and expressly stated that it was not so 

deciding, NCD is very concerned that these decisions will be considered as having endorsed the 

EEOC approach on these issues, weakening the chances of any frontal assault on them. While the 

Court directly rejected another of the EEOC’s positions—on mitigating measures—the Court 

seemed to follow the single-job standard, albeit without deciding its validity, without expressing any 

misgivings or hesitation. 

NCD has recommended that the EEOC shouldtake a leading role in attempting to limit the potential 

negative implications of an overbroad reading of the Sutton and Murphy decisions on standards 

under the third prong. NCD has declared that the EEOC should “[i]ssue sub-regulatory guidance 

clarifying that the third prong of the definition of individual with a disability includes any American 

who suffers discrimination on the basisof physical or mental impairment, even if that discrimination 

occurs on only one occasion in connection with one particular job with a particular employer, and 

explaining the portions of the Sutton, Murphy, and Kirkingburg decisionsinterpreting the third prong 

of the definition represented an uninformed misapplication of first prong analysis to the third 

70

prong.” Promises to Keep at 236-37. Further, the EEOC should “[p]ursue in litigation and in policy 

activities a proactive and concerted strategy of distinguishing the Sutton, Murphy, and Kirkingburg 

rulings as much as possible from other factual situations, with the goal of confining the impact of 

these rulings to their peculiar facts.” Id. at 237. To date, the EEOC has not fully embraced and 

implemented these recommendations of NCD. 

Whether the EEOC attempts to stem the tide or not, however, there is real danger that the lower 

courts may interpret the Sutton and Murphy decisions as having resolved the issue whether proving 

that an employer regarded a person as substantially limited in the activity of employment requires 

a showing that the employer regarded the person as unable to perform a class of jobs or a broad 

range of jobs. The Court did nothing to rectify this situation in ToyotaMotor Manufacturing,Kentucky, 

Inc. v. Williams, 122 S.Ct. 681 (2002), where the Court recited the EEOC not-just-one-job standard 

(without deciding that the regulation was valid), but held that the criterion of inability to perform a class 

or broad range of activities should not be applied to major life activities other than working. 

9. Particular conditions 

a. Asymptomatic HIV infection constituted a disability 

In Bragdon v. Abbott, 524 U.S. 624, 631, 637, 641 (1998), the Court ruled that HIV even in the 

asymptomatic stage is a physical impairment, and that Abbott’s HIV infection substantially limited 

the major life activity of reproduction, and thus constituted a disability. Because “of the immediacy 

with which the virus begins to damage the infected person’s white blood cells and the severity of the 

disease,” the Court ruled that HIV infection “is an impairment from the moment of infection” and 

“satisfies the statutory and regulatory definition of a physical impairment during every stage of the 

disease.” Id. at 637. The possible implications of the Court’s focus on the activity of reproduction 

are discussed above in the context of “activities of reproduction and sex.” 

The Court indicated that it felt constrained to restrict its analysis to reproduction because Ms. Abbott 

had consistently claimed that HIV infection placed a substantial limitation on her ability to reproduce 

and to bear children, and that it is the Court’s “practice to decide cases on the grounds raised and 

considered in the Court of Appeals and included in the question on which we granted certiorari.” Id. 

at 637-38. The Court recognized, however, that it appeared “legalistic to circumscribe our discussion 

to the activity of reproduction” considering that “major life activities of many sorts might have been 

relevant to our inquiry,” and recognizing arguments “about HIV’s profound impact on almost every 

phase of the infected person’s life.” Id. at 637. The Court added, “[w]e have little doubt that had 

different parties brought the suit they would have maintained that an HIV infection imposes 

substantial limitations on other major life activities.” Id. These statements suggest additional 

promising avenues for demonstrating that HIV infection is a disability under ADA in future cases. 

b. Severe myopia correctable to 20/20 vision 

71

In Sutton v. United Airlines, 527 U.S. 471 (1999), the Court ruled that two sisters who had severe 

myopia, but whose vision with glasses or contact lenses was 20/20 or better did not have a disability 

under ADA. 

c. Medically correctable hypertension 

In Murphy v. United Parcel Service, 527 U.S. 516, 519, 521 (1999), the Court ruled that a man 

whose unmedicated blood pressure was approximately 250/160, but who the Court of Appeals found 

could, with medication, function normally without any significant restrictions on his activities was 

not substantially limited in a major life activity and thus did not have a disability under ADA. The 

Court was not presented with any contention that Mr. Murphy was substantially limited in some way 

while medicated, and the Court observed that it had “no occasion here to consider whether petitioner 

is ‘disabled’ due to limitations that persist despite his medication or the negative side effects of his 

medication.” Id. at 521.The Murphy decision does not preclude future litigants from submitting such 

proof. (Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), also involved a 

plaintiff with hypertension, but the issues considered by the Court did not include the disability of 

the plaintiff.) 

d. Amblyopia resulting in monocular vision 

In Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999), the Court ruled that the issue of 

whether monocular vision constitutes a disability must be determined through case-by-case 

consideration of the extent of visual restrictions. The Court clarified that it did not mean “to suggest 

that monocular individuals have an onerous burden in trying to show that they are disabled,” and, 

in fact, “people with monocular vision ‘ordinarily’ will meet the Act’s definition of disability.” Id. 

at 567. It was simply requiring “monocular individuals, like others claiming the Act’s protection, 

to prove a disability by offering evidence that the extent of the limitation in terms of their own 

experience, as in loss of depth perception and visual field, is substantial.” Id. 

e. Mental retardation and psychiatric disabilities 

In Olmstead v. L.C., 527 U.S. 581, 589 (1999), the Court stated that there was “no dispute that” the 

plaintiffs, two women with mental retardation, one of whom had also been diagnosed with 

schizophrenia, and the other with a personality disorder, had disabilities under ADA. The state 

officials did not contest the existence of the women’s disabilities. 

f. Carpal tunnel syndrome 

In ToyotaMotor Manufacturing,Kentucky,Inc. v.Williams, 122 S.Ct. 681 (2002),theCourt considered, 

butdidnotresolvewhetherMs.Williams'conditionsof carpaltunnelsyndromeandtendinitisconstituted 

disabilities under the ADA. The Court ruled that the Court of Appeals had applied the wrong legal 

standards in assessing whether Ms. Williams' condition substantially limited the major life activity of 

performingmanualtasks,andremandedthe caseforfurtherproceedingsundertheproperlegalstandards. 

The Court indicated that because the symptoms of carpal tunnel syndrome vary widely from person to 

72

person, an individualized assessment of the effect of the condition was necessary. Recognizing the large 

differences in the severity and duration of the effects of carpal tunnel syndrome in particular cases, the 

Court refused to make an across the board ruling that the condition is or is not a disability. Such a 

resolution leaves open the possibility that future litigants, and Ms. Williams herself, may prevail in 

proving that their carpaltunnelsyndrome is a disabilitywithin the meaning ofthe ADAin their particular 

circumstances. 

E. INTEGRATION MANDATE AND DEINSTITUTIONALIZATION 

1. Prohibition of Segregation 

In Olmstead v. L.C., 527 U.S. 581, 597 (1999), the Court ruled that “[u]njustified isolation ... is 

properly regarded as discrimination based on disability.” The Georgia officials had contended that 

discrimination necessarily requires uneven treatment of similarly situated individuals, so that 

plaintiffs must identify a comparison class of similarly situated individuals given preferential 

treatment. The Court responded that it was “satisfied that Congress had a more comprehensive view 

of the concept of discrimination advanced in ADA.” Id. at 598. The Court ruled that ADA not only 

requires public entities to refrain from discrimination, but its “Findings” explicitly identified 

unjustified “segregation” of persons with disabilities as a form of discrimination. Id. at 600. The 

Court observed that ADA’s recognition of unjustified institutional isolation of persons with 

disabilities as a form of discrimination reflects two judgments: (1) that “institutional placement of 

persons who can handle and benefit from community settings perpetuates unwarranted assumptions 

that persons so isolated are incapable or unworthy of participating in community life;” and (2) that 

“confinement in an institution severely diminishes the everyday life activities of individuals, 

including family relations, social contacts, work options, economic independence, educational 

advancement, and cultural enrichment.” Id. at 600-01. The Court found that dissimilar treatment had 

been established: “In order to receive needed medical services, personswith mental disabilitiesmust, 

because of those disabilities, relinquish participation in community life they could enjoy given 

reasonable accommodations, while persons without mental disabilities can receive the medical 

services they need without similar sacrifice.” Id. at 601. 

The Court’s recognition of the integration mandate of ADA has had significant positive 

consequences. It led, for example, to the January 14, 2000, letter of Secretary of Health and Human 

Services (HHS), Donna Shalala, to the governor of each of the States citing the Olmstead decision 

and HHS’s belief “that no person should have to live in a nursing home or other institution if he or 

she can live in his or her community,” and to a letter from the Health Care Financing Administration 

to each State’s Medicaid Director explaining the Olmstead ruling in more detail and indicating that 

each State should have “a comprehensive, effectively working plan for placing qualified persons 

with disabilities in the most integrated setting appropriate.” See NCD, Promises to Keep: A Decade 

of Federal Enforcement of the Americans with Disabilities Act 129 (2000). More recently, the 

Olmstead decision was a major impetus for President George W. Bush to issue, on June 18, 2001, 

Executive Order No. 13217, which declared the commitment of the United States to communitybased alternatives for individuals with disabilities and declared that “[u]njustified isolation or 

segregation of qualified individuals with disabilities through institutionalization is a form of 

73

disability-based discrimination prohibited by Title II of the Americans with Disabilities Act of 1990 

(ADA).” The Order requires the Attorney General, the Secretaries of Health and Human Services, 

Education, Labor, and Housing and Urban Development, and the Commissioner of the Social 

Security Administration to work cooperatively to ensure that the Olmstead decision is implemented 

in a timely manner. Specifically, the designated agencies are to “work with States to help them 

assess their compliance with the Olmstead decision and ADA in providing services to qualified 

individuals with disabilities in community-based settings, as long as such services are appropriate 

to the needs of those individuals.” 

Thus, it is clear that this aspect of the Olmstead decision has been a powerful engine for increasing 

community alternatives and eliminating unjustified institutional placements. 

2. Prerequisites to deinstitutionalization 

The right to integrated placement established in Olmstead is tempered by some limitations or 

conditions announced in the Court’s decision. None of these is based upon explicit statutory 

language nor is directly enunciated in ADA regulations. 

a. Not for all 

The Court assumed that there are some people whose condition necessitates non-community 

institutionalization; individuals for whom “no placement outside the institution may ever be 

appropriate.” Id. at 605. The Court concluded that nothing in ADA or the regulations condones 

termination of institutional settings for persons “unable to handle or benefit from community 

settings.” 527 U.S. at 601-02. 

b. Deference to states’ professionals 

The Court indicated that a state generally may rely on the reasonable assessments of its own 

professionals in determining whether an individual meets essential eligibility requirements for 

placement in a community-based program, and should not remove individuals from the more 

restrictive setting if they do not qualify for community-based placement. Id. at 602. 

c. Person must desire to be integrated 

The Court declared that federal law does not create any “requirement that community-based 

treatment be imposed on persons who do not desire it.” Id. This ruling suggests that states can keep 

people in unnecessarily segregated settings so long as the individuals do not (or are unable to§) 

object to it. 

d. The state must offer the community services sought 

While ruling that “States must adhere to ADA’s nondiscrimination requirement with regard to the 

services they in fact provide,” the Court cautioned that it was not holding that ADA imposes on the 

74

States a “standard of care” for whatever medical services they render, or that ADA requires States 

to “provide a certain level of benefits to individuals with disabilities.” Id. at 603, n. 14. Thus the 

Court spoke of “the State’s responsibility, once it provides community-based treatment to qualified 

persons with disabilities....” Id. at 603. 

3. Cost defense 

In its ruling in the Olmstead case, the 11th Circuit had declared that the standard for applying the 

fundamental alteration limitation was “whether the additional expenditures necessary to treat [the 

plaintiffs] in community-based care would be unreasonable given the demands of the State’s mental 

health budget.” 138 F.3d at 905. None of the various opinions filed by the Justices of the Supreme 

Court garnered a majority. A total of eight Justices (all except Justice Stevens), however, concluded 

that the Eleventh Circuit had applied too restrictive an interpretation of the defense. Justice Stevens 

would have affirmed the Eleventh Circuit’s decision as to the fundamental alteration defense. Five 

Justices (the four who joined in Justice Ginsburg’s opinion plus Justice Kennedy) concluded that the 

Eleventh Circuit had applied too restrictive an interpretation of the defense. Justice Thomas, joined 

by Chief Justice Rehnquist and Justice Scalia, would have held that differential treatment because 

of cost is not discrimination at all. As to the standard that should be applied to such cost defenses, 

Justice Ginsburg wrote that “the fundamental-alteration component of the reasonable-modifications 

regulation would allow the State to show that, in the allocation of available resources, immediate 

relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the 

care and treatment of a large and diverse population of persons with mental disabilities.” 527 U.S. 

at 604. Justice Kennedy indicated that states should be “entitled to wide discretion in adopting [their] 

own systems of cost analysis, and, if [they] choose, to allocate health care resources based on fixed 

and overhead costs for whole institutions and programs.” Id. at 615. 

The Justices’ views on the cost defense may have been influenced by the apparent acceptance by the 

United States of cost factors beyond those accepted by the Eleventh Circuit. Justice Ginsburg’s 

opinion, for example, quotes the brief Amicus Curiae of the United States regarding “increased 

overall expenses by funding community placements without being able to take advantage of the 

savings associated with the closure of institutions” and “the cost of running partially full institutions 

in the interim,” prior to closing down particular institutions. Id. at 604, and n. 15, quoting Brief for 

United States as Amicus Curiae 21. During oral arguments in Olmstead, the Solicitor General’s 

office also furthered the idea of a financial hardship defense to States’ duties under Title II of ADA 

to render services in the most integrated setting appropriate (The pertinent section of the transcript 

of the oral argument is found at 1999 WL 252681, pp. 20-21). ADA itself established a fundamental 

alteration standard, a higher standard than financial hardship3. For NCD’s critical analysis of these 

3

 One comm entator has argued that the Court’s recognition of a financial burden defense in Olmstead represents a 

compo unding of erro r made w hen the courts m anufacture d such a defe nse from a dubious and unsupported dictum in 

Southeastern Community College v. Davis, 442 U.S. 397 (1979). Armen H. Merjian, “Bad Decisions Make Bad 

Decisions: Davis , Arline, and Improper Application of the Undue Financial Burden Defense Under the Rehabilitation 

Act and the Americans with Disabilities Act,” 65 Brooklyn Law Review 105 (1999). 

75

and some other policy stances on behalf of the United States regarding issues raised in Olmstead, 

see NCD, Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities 

Act 119-120 (2000). 

4. Not directly requiring closing institutions 

Justice Ginsburg’s opinion, and the shifting lineup of Justices joining in its different parts leaves 

some ambiguity about the Court’s views on whether ADA may require the closing of some or all of 

states’ institutions. In part III.B of the opinion, which did not represent a majority of the Court, 

Justice Ginsburg wrote that “[a]s already observed, see supra, at [119 S.Ct.] 2187-2188, ADA is not 

reasonably read to impel States to phase out institutions, placing patients in need of close care at 

risk.” 527 U.S. at 604. While this statement is relatively clear, the discussion apparently referred to 

on the cited pages, which are part of the opinion for a majority, actually states, “[w]e emphasize that 

nothing in ADA or its implementing regulations condones termination of institutional settings for 

persons unable to handle or benefit from community settings.” Id. at 601-02. This statement is not 

exactly equivalent to the former. Justice Kennedy, in a portion of his opinion in which he was joined 

by Justice Breyer, wrote about negative consequences of some deinstitutionalization. In his view, 

it would be “unreasonable” and “tragic” if ADA were interpreted “to drive those in need of medical 

care and treatment out of appropriate care and into settings with too little assistance and 

supervision.” Id. at 610. These statements, while not explicitly conclusive on the issue, represent a 

sentiment among at least five of the Justices that ADA does not require the closing of institutions. 

When added to the three dissenters, who argued that segregation in treatment facilities does not 

constitute discrimination at all, the opinions represent a setback to efforts to interpret ADA as 

requiring the closing of isolated, segregated state institutions. This effect, however, may be offset 

by the Olmstead decision’s clear endorsement of an integration requirement. The impact of this 

integration mandate in ensuring community placements for increasing numbers of individuals may 

eventually generate economic reasons for phasing out state institutions. 

5. Waiting Lists 

In Justice Ginsburg’s view, a state could meet ADA reasonable modification requirement by having 

a “comprehensive, effectively working plan” for placing qualified persons with mental disabilities 

in less restrictive settings. Id. at 605-06. And this would be sufficient even if the plan involved a 

waiting list, so long as the waiting list “moved at a reasonable pace not controlled by the State’s 

endeavors to keep its institutions fully populated....” Id. at 606. These views are presented in a 

portion of Justice Ginsburg’s opinion that does not represent a majority of the Court, but when 

considered in light of the three dissenting Justices who do not believe that segregated placements 

constitute discrimination at all, the endorsement of waiting lists in Justice Ginsburg’s opinion could 

be significant. 

F.	 CONSTITUTIONAL LIMITS ON CONGRESSIONAL AUTHORITY IN 

RELATION TO ADA 

76

In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), the Supreme 

Court ruled that suits by employees of a state to recover money damages from a state for violations 

of Title I of ADA are barred by the Eleventh Amendment. This followed the Court’s decision in 

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), in which the Court had ruled that the Age 

Discrimination in Employment Act didnot validly abrogate states’ Eleventh Amendment immunity 

from suits by private individuals. En route to its decision in Garrett, the Court indicated that in 

evaluating congressional authority to enact ADA provisions as part of its power to enforce the 

Fourteenth Amendment, the Court would require that legislation reaching beyond the scope of the 

Fourteenth Amendment’s guarantees must exhibit “congruence and proportionality” between the 

constitutional injury being addressed and the means adopted to address it. Garrett, 121 S.Ct. at 963, 

quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997). In considering the constitutional injury 

addressed by ADA, the Court indicated that it would apply “rational-basis review”—the lowest level 

of equal protection analysis—to state discrimination on the basis of disability challenged as violating 

equal protection. In applying such standards to Title I of ADA and as it applies to state employment, 

the Court found that the evidence Congress assembled of unconstitutional state discrimination in 

employment was inadequate, and that Congress had not imposed a remedy that is congruent and 

proportional to the targeted constitutional violation. 

Disability rights activists and scholars were quick to point out the limited scope of the Garrett ruling. 

On the day that the Court announced its decision, ADA Watch noted in a Press Release that the 

ruling does not: (a) prevent individual suits against a state employer for injunctive relief; (b)bar suits 

initiated by the Federal Government for monetary damages; (c) bar suits for money damages against 

private employers or local governments; and (d) apply to Title II of ADA. ADA Watch, Press 

Release: Civil Rights Advocates Respond to Supreme Court Decision, February 21, 2001. Some of 

these limitations are based upon footnote 9 in the Opinion in which the Court clarified that its ruling 

did not mean that persons with disabilities have no federal recourse against discrimination. The 

Court noted that states are still subject to Title I standards, and those standards can be enforced by 

the United States in actions for money damages, as well as by private individuals in actions for 

injunctive relief. In addition, state laws protecting the rights of persons with disabilities in 

employment may provide additional avenues of redress. Subsequently, in Buckhannon Board and 

Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835, 1843 n. 

10 (2001), the Court would reiterate long-standing principles that “[o]nly States and state officers 

acting in their official capacity are immune from suits for damages in federal court,” and that 

“[p]laintiffs may bring suit for damages against all others, including municipalities and other 

political subdivisions of a State.” In another footnote (number 1) at the beginning of its opinion in 

Garrett, the Court stressed that it was not addressing whether Title II, “which has somewhat different 

remedial provisions from Title I,” is appropriate legislation under § 5. 121 S.Ct. at 960 n. 1. Of 

course, some of the analysis the Court applies to Title I in Garrett may nonetheless greatly affect the 

analysis of Eleventh Amendment immunity under Title II in future court challenges. 

The direct impact of the Court’s ruling in Garrett is fairly easy to describe, but its longer-term 

implications are much harder to determine. Some fear that the analytical standards applied to Title 

I in Garrett will be applied to also bar private suits for monetary damages against states under Title 

II. Some see the Garrett decision as but one step on a broader effort by the Court to restrict 

77

congressional authority and to expand the rights of states that may have serious repercussions for 

the Commerce Clause authority also expressly invoked by the Congress in enacting ADA, and 

perhaps even to the Spending Clause authority that provides the constitutional underpinning of 

Section 504 of the Rehabilitation Act of 1973. Others view such threats as highly speculative and 

unlikely. The Garrett decision has been the subject of much discourse and debate. Within legal 

periodicals, a Westlaw search of law reviews and journals revealed some 40 articles discussing the 

Garrett decision and its implications. See, e.g., Jaclyn F. Okin, Has the Supreme Court Gone Too 

Far?: An Analysis of the University of Alabama v. Garrett and its Impact on People with 

Disabilities, 9 Am. U. J. Gender Soc. Pol’y & L. 663 (2001); Mark A. Johnson, Note, Board of 

Trustees of the University of Alabama v. Garrett: A Flawed Standard Yields A Predictable Result, 

60 MD. L. REV. 393 (2001). The Web site of the National Senior Citizens Law Center has a concise 

but informative analytical paper, Life After Garrett: Enforcing ADA and Section 504 Against States, 

and State Officials by Herbert Semmel (updated March 12, 2001) that discusses alternatives in the 

event of a “worst case scenario” in which the limitations on Title I in Garrett are eventually imposed 

on Title II as well; it is found at http://www.nsclc.org/lifeaftergarrett.html. 

While recognizing limitations in the direct scope of the Garrett decision, NCD has described the 

decision as “another obstacle in the path of people with disabilities,” and has expressed its deep 

concern that the Garrett decision could initiate a “slippery slope” that would lead to further 

restriction of rights established under ADA. NCD, News Release: National Council on Disability 

Deeply Troubled by U.S. Supreme Court Decision Limiting Scope of Americans with Disabilities Act 

(Feb. 21, 2001) (on the NCD Web site at http://www.ncd.gov/newsroom/news/r01-321.html). 

G. SAFETY STANDARDS AND DIRECT THREAT DEFENSE 

In Bragdon v. Abbott, 524 U.S. 624 (1998), the Court interpreted and applied the defense of “direct 

threat to the health or safety of others” established under Title III of ADA. 42 U.S.C. 

§ 12182(b)(3). The Court indicated that the direct threat concept had its origins and is to be 

interpreted consistently with School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). It stated 

that the existence of such a direct threat is to be determined from the standpoint of the person who 

refuses to provide accommodation or equal treatment and must be based on medical or other 

objective evidence available at the time the decision was made. No special deference is to be 

afforded, however, to health care professionals; a health care professional who disagrees with the 

prevailing medical consensus on the existence of a direct threat must refute it by citing credible 

scientific evidence for deviating from the accepted norm. 

On remand, the CDC universal precautions were found adequate to prevent a direct threat to dental 

workers; “possible” cases of patient-to-dental-worker HIV transmission were found to be too 

speculative or too tangential to establish a direct threat. The First Circuit added an admonition that 

in future cases it might reach different results: “The state of scientific knowledge concerning this 

disease is evolving, and we caution future courts to consider carefully whether future litigants have 

been able, through scientific advances, more complete research, or special circumstances, to present 

facts and arguments warranting a different decision.” Abbott v. Bragdon, 163 F.3d 87, 90 (1st Cir. 

1998). 

78

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), raised a question under the direct threat 

provision of Title I. 42 U.S.C. § 12113(b). The Court noted that the United States had urged that in 

applying a qualification standard grounded in safety concerns, it should read subsections (a) (42 

U.S.C. § 12113(a)—“job-related and consistent with business necessity, and ... performance cannot 

be accomplished by reasonable accommodation”) and (b) (“direct threat”) together so that when an 

employer would impose any safety qualification standard, however specific, tending to screen out 

individuals with disabilities, the application of the requirement must satisfy ADA’s “direct threat” 

criterion. 527 U.S. at 569. Under such an approach, all safety criteria imposed by employers would 

be evaluated under the direct threat standard. The Court expressed some doubt whether the 

Government’s interpretation, which might impose a higher burden on employers to justify safetyrelated qualification standards than other job requirements, was a sound one, but found it did not 

need to confront the validity of the reading in the Kirkingburg case. Id. at 569 n. 15. Instead, the 

Court simply ruled that Albertson’s was entitled to rely on the DOT visual acuity standard as a job 

qualification criterion. 

In Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002), the Supreme Court upheld as permissible 

under the ADA the Equal Employment Opportunity Commission regulation that allows employers to 

refuse to hire applicants because their performance on the job would endanger their health due to a 

disability, despite the fact that in the language of the ADA Congress had recognized a "direct threat" 

defense only for dangers posed to other workers. The Council has opposed the EEOC danger-to-self 

provision,becauseitinvitespaternalisticconjecturingby employers and theirphysicians about perceived 

dangers to individuals with disabilities, often based on ignorance and misconceptions about particular 

conditions, and fosters perceptions that individuals with disabilities are commonly irrationally selfdestructive. See National Council on Disability, PROMISES TO KEEP: A DECADE OF FEDERAL 

ENFORCEMENT OF THE AMERICANS WITH DISABILITIES ACT 221-222 (2000); National Council on 

Disability, BRIEFAS AMICUSCURIAE IN SUPPORT OFRESPONDENTIN CHEVRONU.S.A.INC.V.ECHAZABAL 

(2002). The Court's acceptance of the EEOC provision raises the possibility of more prevalent use of 

such overprotective health standards in the future. 

TheCourt did note in Echazabal that the EEOC provision requiresthat the direct threat defensemust be 

"based on a reasonablemedicaljudgment" supported by "themost currentmedicalknowledge and/orthe 

best available objective evidence," and must involve an "individualized assessment of the individual's 

present ability to safely performthe essentialfunctions ofthe job," that considers how imminent the risk 

is and how severe the harm would be. 29 C.F.R. ? 1630.2(r) (2001). These requirements should 

ameliorate the damaging effects of the risk-to-self defense to some degree, and provide litigants with 

disabilities and their attorneys grounds for contesting the assertion of such a defense. These supposed 

safeguardsmay, however, be rendered ineffective to the extent thatsuch judgments and assessments are 

made by physicians who are employed by employers and may be more sensitive to protecting the 

employer than to the equal opportunity rights of potential employees with disabilities under the ADA. 

Many job applicants with disabilities will not have the knowledge or resources to challenge the 

reasonableness andbasisincurrentmedicalknowledgeofjudgmentsmadebycompanydoctorsthattheir 

employment would endanger their health or safety. 

79

--

The Court in Echazabal did not resolve an issue expressly left open in Albertson's, Inc. v. Kirkingburg, 

527 U.S. 555, 569-570, n. 15 (1999): whether all safety-related qualification standards must satisfy the 

ADA's direct-threat standard. 122 S.Ct. at 2050 n. 3. But the Court did declare that safety-related 

qualification standardsthatwouldreject potentialworkers becauseof "indirect"threatsof "insignificant" 

harm are implicitly precluded by the Act's specification of a direct-threat defense. Because of the 

proceduralmannerin which the case came to the SupremeCourt,the Echazabal Court also did not have 

occasion to determine whetherChevron could havemade a reasonableaccommodation that would have 

permittedMr.Echazabalto keephisjob in spiteofthe threat-to-selfstandard, id. at 2048 n. 2. This leaves 

open the possibility that future litigants may be able to sidestep exclusion from a job if they can identify 

a reasonable accommodation that will permit job performance without endangering the worker's health 

or safety. The Court also accepted that safety-related qualification standards are subject to the same 

requirement as other types of qualification standards that screen out individuals with disabilities -- that 

they must be "job-related" and "consistent with business necessity." Id. at 2053; 42 U.S.C. ? 

12112(b)(6); 122 S.Ct. at 2053 & n. 6. These requirements may provide other avenues for challenging 

unnecessary risk-to-selfstandards. TheCourt also indicated that it had no occasion to decide the degree 

of match there must be between a condition deemed disqualifying and the particular job applicant's 

manifestation ofthe condition "howacutelyan employeemust exhibit a disqualifying condition before 

an employer may exclude him from the class of the generally qualified." 122 S.Ct. at 2053 n.6. The 

Court concludedthatthe trial courtsshouldhave the opportunityto addressthisissue before theSupreme 

Court considers it. 

In discussing the question whether Congress intended the direct threat defense to apply only to threats 

to others, the Court examined the statutory language creating the defense ("The term `qualification 

standards'may include a requirementthat an individualshallnot poseadirectthreatto the healthorsafety 

of other individuals in the workplace." 42 U.S.C. ? 12113(b).), and reasoned that Congress could not 

have intended this language to limit the kinds of direct threats to the class listed. If it had, said the Court, 

then employers could not avoid hiring employees whose conditions would endanger customers or other 

personsnotintheworkplace. Toillustratethisreasoning,theCourtresortedtoaninflammatoryexample: 

"If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had 

sued after being turned away?" 122 S.Ct. at 2051. This harsh example was both unnecessary and 

misplaced. First,apersonwithtyphuswouldobviouslypresent adangerto otherworkers. Second, given 

thattheADAdefines "directthreat" tomean "a significantriskto the healthorsafetyof othersthat cannot 

be eliminated by reasonableaccommodation,"without a limitation to others "intheworkplace," a logical 

reading of the provision concerning direct threat as a qualification standard would be that the defense 

appliesto requirementsthat conditions not pose a directthreatto othersifpermitted in theworkplace, i.e., 

that "in the workplace" modifies "poses" rather than "others." Thus, typhus in the workplace would pose 

a direct threat to others, even if "others" is interpreted to refer to customers, not other workers. 

In utilizing the "Typhoid Mary" example, and elsewhere when it refers to "skyscraper workers with 

vertigo," id. at 2053 n. 6, the Court seems to ignore the fact that to be a "qualified individual with a 

80

disability" protected from discrimination under Title I of the ADA, a person must be able to perform the 

essential functions of the employment position. 42 U.S.C. ? 12111(8). Askyscraperworkerwhocannot 

work on high floors and ameat processor who cannot prepare uncontaminated, hygienic food would not 

be qualified underthe ADA and could not availthemselves ofthe Act's protectionsfrom discrimination. 

The Court expressly did not consider the issue of whether Mr. Echazabal was "qualified," but made a 

confusing statement that "[t]hat issue will only resurface if the Circuit concludes that the decision of 

respondent's employer to exclude him was not based on the sort of individualized medical enquiry 

required by the regulation ...." 122 S.Ct. at 2047 n.1. Under the ADA, the issue of whether a 

complainant is "qualified" should be a preliminary condition to the application of the substantive 

protectionsfromjob discrimination. WhileMr.Echazabalwas almostcertainlyqualified becausehe had 

been satisfactorily performing the job tasks for some time, other persons such as "Typhoid Mary" and 

"skyscraperworkerswithvertigo"willnot be qualified and thuswillbe ineligibletoinvoke theprotection 

of the Act's prohibitions of employment discrimination. The Court's statements and inflammatory 

examples seriously muddy the analytical waters. 

The Court recognized that the EEOC has taken a narrow view of the paternalism and "overprotective 

rules and policies" that Congress prohibited as forms of discrimination in the ADA. 42 U.S.C. § 

12101(a)(5). The Court characterized EEOC as having concluded that "Congress was not aiming at an 

employer's refusal to place disabled workers at a specifically demonstrated risk, but was trying to get at 

refusals to give an even break to classes of disabled people, while claiming to act for their own good in 

reliance on untested and pretextual stereotypes." In the Court's view, the EEOC direct threat provision 

only addresses such pretextual, class-based exclusionary standards, which the Court termed "sham 

protection." 122 S.Ct. at 2052-53. Neither the EEOC nor the Court has acknowledged the difficult 

burden of proof this interpretation places on a job applicant who has been rejected for a particular job 

because of alleged risk to the applicant who must try to prove that the employer was basing its actions 

on pretextual, class-based stereotypes. The EEOC approach suggests that an applicant who has been 

rejected becauseof an employer'srisk-to-selfconcerns cannotsimply prove that the applicant can in fact 

do the job safely, but might need to prove that the employer's action was based upon pretext and classbased stereotypes. Such evidence of what was going on in the employer's mind is notoriously hard to 

obtain. There also appears to be some tension between the class-based stereotype notion and the 

"individualized" determination of direct threat that the EEOC purports to require. 

TheCourtstated that "theremay be an open questionwhether an employerwouldactuallybe liableunder 

OSHA [the Occupational Safety and Health Act of 1970] for hiring an individual who knowingly 

consented to the particular dangers the job would pose to him," but added that "the employer would be 

asking for trouble." Id. at 2052. Mr. Echazabal had pointed out and the Court accepted that "there is no 

known instance of OSHAenforcement,or even threatened enforcement,against an employerwho relied 

on the ADA to hire a worker willing to accept a risk to himselffrom his disabilityon the job." Id. Given 

that factual background, the Court's reference to "asking for trouble" is somewhat mysterious. Is the 

Courtsignaling that it is prepared to recognize employers'liability in such a situation? Would the Court 

impose such liability under OSHA for actions required of an employer under another federal law, the 

81

ADA? TheCourt'sincompletediscussion ofthesematters concerning the intersectionbetweentwomajor 

federal laws raises more questions than it answers. 

H. ARBITRATION CLAUSE IN COLLECTIVE BARGAINING AGREEMENTS 

In Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), the Court ruled that a general 

arbitration clause does not require a worker to use the arbitration procedure for ADA claims. The 

Court indicated that if there were to be a waiver of the worker’s right to a judicial forum for ADA 

claims, the waiver would have to be a clear and unmistakable waiver, but, even if there were such 

a waiver, the Court expressly did not reach the question whether it would be enforceable. 

In Equal Employment Opportunity Commission v. Waffle House, Inc., 122 S.Ct. 754 (2002) the Court 

ruled that an agreement between an employer and an employee to arbitrate any employment-related 

dispute or claim did not bar the Equal Employment Opportunity Commission (EEOC) from pursuing 

victim-specific remedies, such as backpay, reinstatement, and damages, against the employer for 

allegedlyviolating the ADA. TheCourt examined the impact ofthe Federal Arbitration Act(FAA), and 

held that, because the EEOC was not a party to the arbitration agreement and had not agreed to arbitrate 

its claims,the FAA did notrequire the agency to relinquishitsright to pursue judicialrelief, even though 

the employer and employee may have chosen to do so. This ruling should preserve the enforcement 

options open to the ADA federal enforcement agencies even if complainants may have narrowed their 

options by agreeing to arbitrate disputes. 

I.	 IMPACT OF APPLICATION FOR AND RECEIPT OF DISABILITY BENEFITS 

ON ADA CLAIMS 

In Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the Court found that the 

Court of Appeals had erred by applying a special legal presumption that would permit applicants for 

or recipients of SSDI benefits to pursue ADA claims only in “some limited and highly unusual set 

of circumstances.” Id., quoting 120 F.3d at 517. The Court ruled that an ADA plaintiff should not 

be required to rebut a presumption of estoppel but instead only to “proffer a sufficient explanation” 

of the apparent contradiction that arises out of an earlier SSDI total disability assertion. 526 U.S. at 

806. Accordingly, a plaintiff must offer an explanation that would permit a reasonable conclusion 

that, assuming the earlier assertion was true or asserted by the plaintiff in good faith, the plaintiff 

would nonetheless be able to perform the essential functions of the job. This ruling interrupted a 

large body of lower court decisions that had prevented individuals who had filed for or were awarded 

Social Security disability benefits from pursuing ADA employment discrimination claims. 

J. REASONABLE ACCOMMODATION 

1. In general 

In U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002), the Court provided some analysis of the 

requirement of Title I of the ADA that employers make reasonable accommodations to the known 

82

physical or mental limitations of applicants or employees with disabilities. The Court stated that 

"preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal," and 

indicated that reasonable accommodations constitute a form of "preference" required for workers with 

disabilities under the ADA, one that is necessary to offer them the same workplace opportunity as other 

employees. Id. at 1521. The Court added, "By definition any special `accommodation' requires the 

employer to treat an employee with a disability differently, i.e., preferentially." Id. 

TheCourt's characterizationofreasonableaccommodations as "special"and "preferential"is unfortunate. 

It fuels the misconception that the ADA gives people with disabilities some type of advantage over 

people without disabilities. Properly understood, reasonable accommodations are adjustments or 

modifications intended to level the playing field for a person who would otherwise be denied an equal 

opportunity. In proposing the idea of anADAin 1986, theCouncilidentified reasonableaccommodation 

as "[a] key element of eliminating discrimination" on the basis of disability, and described it as "the 

process of matching the particular abilities and limitations of each disabled individual with the essential 

requirementsof a particular activityand trying tomodify the activityas necessaryto permitthe individual 

with a disability to participate." National Council on Disability, TOWARD INDEPENDENCE, app. at A-15 

(1986). The Council also observed that "[d]iscrimination against people with disabilities has literally 

been built into the physical environment, and eliminating such discrimination requires planning and 

action to remove barriers that exclude disabled people." Id. at A-37. 

The ADA's reasonable accommodation requirement built upon a clear analytical foundation described 

in detail in ACCOMMODATING THE SPECTRUM OF INDIVIDUAL ABILITIES,the U.S. Commission on Civil 

Rights' 1983 report on disability discrimination. Central to the reasonable accommodation concept is 

recognition that the impact of physical andmental impairmentslargely"is as much inherent in the social 

context asin the impairment," and that while it isfrequentlyassumed that there is only one way of doing 

things -- tailored to the needs and abilities of those without disabilities -- in fact, "programs, activities, 

and facilities may actually be organized in a variety of ways" that "can be changed in response to the 

abilities and characteristics of the person involved." Id. at 89, 90. To the degree that a particular job 

situationisslantedagainstapersonwithcertainimpairments,identicaltreatmentofthatpersoninrelation 

to other employees or applicantswould not provide real equalityof opportunity. AstheCommission on 

CivilRights observed: "When decisionmakersforget thatsocial context almost always are structured for 

[people without disabilities], they are apt to view anything beyond ... identical treatment as special, 

unequal treatment necessitated by the [disability]." Id. at 99. This is precisely the verbal trap suggested 

by the Court's "special" and "preferential" phrasing in the Barnett opinion. 

For additional confirmation thatreasonableaccommodation is not "special treatment," and a description 

of the types of "accommodations" employers routinely make for employees without disabilities, see 

Robert L. Burgdorf Jr., "Substantially Limited" Protection from Disability Discrimination: The Special 

Treatment Model and Misconstructions of the Definition ofDisability, 42 VILLANOVAL.REV. 409, 529-

533 (1997). 

83

The Barnett Court's "preference" and "special" phraseology, while regrettable, is somewhat misleading. 

The Court explained that it was using the term "preference" narrowly in referring to some reasonable 

accommodations, "in the sense that it would permit the worker with a disability to violate a rule that 

others must obey." 122 S.Ct. at 1521. The Court recognized that such reasonable accommodations 

"sometimes prove necessary to achieve the Act's basic equal opportunity goal. The Act requires 

preferences in the form of `reasonable accommodations' that are needed for those with disabilities to 

obtain the same workplace opportunities that those without disabilities automatically enjoy." 122 S.Ct. 

at 1521. As such, despite its unartful terminology, the Court's opinion ultimately validates the rationale 

underlying the ADA's imposition of a reasonable accommodation requirement. 

The Court ruled that the reasonable accommodation obligation can require an employer to make 

exceptions to disability-neutral practices and rules, and elaborated as follows: 

Were that not so, the "reasonable accommodation" provision could not accomplish its intended 

objective. Neutral office assignment rules would automatically prevent the accommodation of 

an employee whose disability-imposed limitations require him to work on the ground floor. 

Neutral "break-from- work" rules would automatically prevent the accommodation of an 

individual who needs additional breaks from work, perhaps to permit medical visits. Neutral 

furniture budget rules would automatically prevent the accommodation of an individual who 

needs a different kind of chair or desk. Many employers will have neutral rules governing the 

kinds of actions most needed to reasonably accommodate a worker with a disability. 

Id. 

Significantly, this ruling makes it clear that the duty of making reasonable accommodations is not 

restricted simplytomodifying rules and practicesthat directlydisadvantageworkerswith disabilities,and 

can necessitate exceptions to practices and policies that are disability-neutral and applied uniformly to 

all workers. 

2. Evidentiary framework 

The majority opinion in Barnett set out an evidentiary framework for reasonable accommodations cases 

in which the employer files a motion for summary judgment (which basically claims that even if the 

plaintiff is correct in all the factual allegations, as a matter of law the employer will still win the lawsuit). 

Adopting the approach of some lower court decisions, the Court ruled that to overcome an employer's 

summary judgment motion, a plaintiff employee needs only show that an accommodation seems 

reasonable on its face, "ordinarily or in the run of cases." Id. at 1523. Once the plaintiff meets this 

burden, the employer hasto establishthe existence of ? undue hardship? in the particular circumstances. 

3. Reasonableness of accommodations 

84

Prior to the Barnett decision, the EEOC and most commentators had believed that, to comply with the 

evidentiary burdens outlined in the prior subsection, a plaintiff merely had to show that a particular 

accommodation worked, in the sense that it would enable the worker with a disability to perform the 

essential functions of the job. The limits on its "reasonableness" were established by the ADA definition 

of "undue hardship," which provided that an employer did not have to make an accommodation that 

required "significant difficultyor expense" determined in light ofresources availableto the employer, the 

nature and cost of the accommodation, and other factors. 42 U.S.C. ? 12111(10). An "unreasonable 

accommodation," then, was one that resulted in undue hardship. The majority opinion in Barnett, 

however, recognized an assessment of reasonableness of accommodations apart from undue hardship. 

The Court reasoned that the ADA does not "demand action beyond the realm of the reasonable.? 122 

S.Ct. at 1523. It rejected Mr. Barnett's argument that the word "reasonable" in "reasonable 

accommodation" only means "effective," and held that it is the word "accommodation," not the word 

"reasonable," that conveys the need for effectiveness. The Court declared that "an accommodation could 

be unreasonable in its impact even though it might be effective in facilitating performance of essential 

job functions." Id. at 1522. In permitting employers and courts to conduct an assessment of the 

"reasonableness" of accommodations, apart from their financial and administrative hardship on the 

employer's operation, the Barnett opinion opened up a troublesome can of worms. It invites employers 

to interject their own eccentric and prejudiced views about what is reasonable, and allows courts to 

second-guess otherwise workable and not unduly burdensome accommodations. 

In its regulations and regulatory guidance, the EEOC has suggested a process for determining an 

appropriateaccommodation, that involvesinitial discussions between the employer and the employee or 

applicant, analysis of the particular job involved to determine its purpose and essential functions, 

consultation with the individual with disability to identify job-related limitations and how those 

limitations couldbe overcomewitha reasonableaccommodation,identifying potential accommodations 

and assessing the effectiveness each would have, and selecting and implementing the accommodation 

that is most appropriate for both the employee and the employer considering the preference of the 

individual to be accommodated. 29 C.F.R. 414 (app. to pt. 1630) (commentary on ? 1630.9) (1993). 

This process did not contemplate that an employer could say that, although such-and-such 

accommodation would be effective and is not unduly costly or difficult, I still reject it because I do not 

think it is reasonable. Hopefully future decisions may restrict this independent evaluation of 

reasonableness of accommodations to the reassignment/seniority factual context at issue in the Barnett 

case. 

The majority opinion in Barnett did recognize that the fact that an accommodation would exempt a 

worker with a disability from a rule or requirement other workers are subject to does not automatically 

show that the accommodation is not reasonable. 122 S.Ct. at 1521. 

4. Conflict with seniority rights 

85

The particular accommodation at issue in U.S. Airways, Inc. v. Barnett was allowing Mr. Barnett to 

remain in a position to which he had transferred despite the fact that the position was subject to senioritybased bidding by other employees. Accordingly, the case involved a conflict between the interestsofMr. 

Barnett in being assigned to the position as a reasonable accommodation and the interests of other 

workers with superiorrightsto bid forthe job underU.S.Airways'senioritysystem. TheCourtruled that 

the ADA does not ordinarily require the assignment of an employee with a disability to a particular 

position to which another employee is entitled under an employer's established seniority system, but that 

it might in special circumstances. The Court indicated that transfer to a position to which another 

employee would be entitled under a seniority system would not be reasonable "ordinarily or in the run 

of cases." 122 S.Ct. at 1523-24. But the Court stated that the employee could demonstrate "special 

circumstances"thatwould render a requested accommodation reasonablein the particular circumstances. 

As an example of such circumstances, the Court mentioned situations in which other exceptions to a 

seniority system are made relatively frequently so permitting another to accommodate a worker with a 

disability would not significantly impact the company or workers' expectations. Id. at 1525. 

The upshot of the ruling is that plaintiffs seeking accommodations that conflict with seniority rights of 

other employees will face an uphill battle to demonstrate that the accommodation is reasonable, but can 

prevail if they can demonstrate special circumstances that make an exception to the seniority system 

reasonable. 

On the way to its ruling, the majority clarified that for purposes of accommodations in the form of 

"reassignmentto a vacant position," 42U.S.C. ? 12111(9)(B), a vacantposition canbe one thatis "open" 

for bidding under a seniority system. 122 S.Ct. at 1521. 

Justice O? Connor wrote in her concurring opinion that she would have held that a seniority system 

wouldonly render a job reassignment as an accommodationundertheADAunreasonableifthe seniority 

system was legally enforceable (which U.S. Airways was not). Justice Stevens also filed a concurring 

opinion,inwhich he identified some issuesthat in his viewwouldneed to be resolvedby the lower courts 

to determine whether the accommodation requested by Mr. Barnett was reasonable. The slim 5-to-4 

margin ofthe decision coupled with the sentimentsexpressed in the concurrences are sufficient to afford 

Mr. Barnett and future litigants some leeway to still argue, given the particular circumstances at issue, 

that transfer to a position as a reasonable accommodation should prevail over seniority rights of other 

employees. 

K. REASONABLE MODIFICATION 

In PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the Court interpreted and applied the “reasonable 

modification” requirement under Title III of ADA. 42 U.S.C. § 12182(b)(2)(A)(ii). The Court found 

that the application of this requirement entails three inquiries: “whether the requested modification 

is “reasonable,” whether it is “necessary” for the disabled individual, and whether it would 

“fundamentally alter the nature of” the competition.” 121 S.Ct. at 1893 n. 38. The Court observed 

86

that a preliminary step in applying the “reasonable modifications” requirement is to determine 

whether or not a particular modification sought by an individual with a disability is “necessary” to 

permit the individual to obtain the goods, services, facilities, privileges, advantages, or 

accommodations the public accommodation provides. If a person with a disability can get the 

benefits provided in the absence of the modification, even if it was more difficult or uncomfortable, 

the Court stated that in such cases “an accommodation might be reasonable but not necessary.” 121 

S.Ct. at 1893. The Court also required an individualized inquiry to determine whether a specific 

modification for a particular person’s disability would be reasonableunder the circumstances as well 

as necessary for that person, and yet at the same time not work a fundamental alteration. Id. at 1896. 

The principles announced by the Court are likely to be significant in guiding the application of the 

reasonable modification requirement in future cases. 

L. APPLICATION OF TITLE III TO INDEPENDENT CONTRACTORS 

In PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the Court heard an argument that Martin’s claim 

of discrimination was “job-related” and could only be brought under Title I, except that Title I did 

not apply because he was an independent contractor (the District Court found he was) rather than 

an employee. 121 S.Ct. at 1891. The Court ruled that Martin was a client or customer of the PGA 

Tour and was thus within the protection afforded by Title III. In his dissenting opinion, Justice Scalia 

argued that neither Title I nor Title III protected independent contractors. Id. at 1898. The majority 

did not have to resolve the status of independent contractors as a class in the Martin case, so the 

issue may arise in future cases. 

NCD believes that in pursuing the expressed congressional goal of ADA “to provide a clear and 

comprehensive prohibition of discrimination on the basis of disability,” 42 U.S.C. 12101(b)(1), 

Congress fashioned Title III in extremely broad terms intended to guarantee that no individual is 

discriminated against on the basis of disability in the full and equal enjoyment of public 

accommodations. Accordingly, people who perform, render services, or otherwise participate in 

events or activities at places of public accommodation, whether characterized as competitors, 

performers, participants, or independent contractors, should be protected by Title III. 

M. VALIDITY OF AND DEFERENCE AFFORDED ADA REGULATIONS 

The Supreme Court has vacillated wildly in the degree of respect it has accorded ADA regulations. 

In Bragdon v. Abbott, 524 U.S. 624 (1998), the Court declared that the regulations issued by the 

Department of Justice should be accorded the high level of judicial deference referred to as Chevron 

deference. Pursuant to the Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 844 (1984), where, in enacting a statute Congress expressly directs an 

executive agency to issue regulations to implement the statutory provisions, the regulations issued 

by the agency are to be “given controlling weight unless they are arbitrary, capricious, or manifestly 

contrary to the statute.” In Bragdon, the Court declared as follows in regard to the DOJ’s ADA Title 

III regulations: “As the agency directed by Congress to issue implementing regulations, see 42 

U.S.C. § 12186(b), to render technical assistance explaining the responsibilities of covered 

individuals and institutions, § 12206(c), and to enforce Title III in court, § 12188(b), the 

87

Department’s views are entitled to deference. See Chevron, 467 U.S., at 844.” 524 U.S. at 646. The 

regulatory provisions at issue in Bragdon were primarily those addressing the definition of disability. 

In Sutton v. United Airlines, 527 U.S. 471 (1999), on the other hand, the Court accorded 

considerably less value to the provisions in EEOC’s ADA regulations addressing the definition of 

disability. The Court discussed the various delegations of authority to issue regulations under Titles 

I to IV of ADA, and then declared that “[n]o agency, however, has been given authority to issue 

regulations implementing the generally applicable provisions of ADA, ... which fall outside Titles 

I-V. Most notably, no agency has been delegated authority to interpret the term ‘disability.’ [42 

U.S.C.] § 12102(2).” 527 U.S. at 479. However, because both parties in Sutton accepted the EEOC 

regulations defining “disability” as valid, and the Court determined that the validity of the 

regulations was not necessary to decide the case, it declined to determine “what deference they are 

due, if any.” Id. at 480. Ultimately, the Court rejected a position taken in both EEOC and DOJ 

regulatory guidance—that persons are to be evaluated in their uncorrected state without taking 

mitigating measures into account—was an impermissible interpretation of ADA. Id. at 482. 

In his dissenting opinion in Sutton, Justice Breyer contended that the majority questioning of 

EEOC’s authority was unnecessarily and inappropriately technical: “There is no reason to believe 

that Congress would have wanted to deny the EEOC the power to issue such a regulation, at least 

if the regulation is consistent with the earlier statutory definition and with the relevant interpretations 

by other enforcement agencies. The physical location of the definitional section seems to reflectonly 

drafting or stylistic, not substantive, objectives. And to pick and choose among which of [Title I’s] 

words the EEOC has the power to explain would inhibit the development of law that coherently 

interprets this important statute.” Id. at 514-15. 

Ironically, after questioning the EEOC’s authority to issue regulations implementing the definition 

of disability and rejecting the EEOC’s position on the mitigating measures issue, the Court accepted 

(though without ruling on their validity) EEOC’s regulatory provisions and regulatory guidance 

providing (as part of the disability determination) that inability to perform a single, particular job 

does not constitute a substantial limitation in the major life activity of working (29 C.F.R. § 

1630.2(j)(3)(i) (1998)). 527 U.S. at 491-92. In Murphy v. United Parcel Service, 527 U.S. 516 

(1999), the Court followed the pattern of Sutton, of rejecting the EEOC’s position on the issue of 

inability to perform a broad range or class of jobs, while rejecting EEOC’s stance on the mitigating 

measures issue. 

In Sutton, Murphy, and Kirkingburg, the Court took pains to declare that it was assuming, without 

deciding, that the regulations were valid, and that, if valid, it was not deciding what level of 

deference, if any, they should be accorded. This in sharp contrast to the Court’s opinion in Bragdon 

where the Court held the regulations entitled to one of the highest levels of judicial deference. 

In Olmstead v. L.C., 527 U.S. 581 (1999), the Court gave a degree of respect to the integration 

provision of DOJ’s Title II regulations. The Court declared: “We need not inquire whether the degree 

of deference described in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. is in 

order; “[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute 

88

‘constitute a body of experience and informed judgment to which courts and litigants may properly 

resort for guidance.’” 527 U.S. at 598, quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998) 

(additional citations omitted). Thus, the Court looked for guidance to the DOJ integration and 

reasonable accommodation regulatory provisions, even though it would “not here determine their 

validity” because the state parties were not challenging the regulatory formulations as outside the 

congressional authorization. 527 U.S. at 592. 

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002), the Court stated that 

regulationsinterpreting theRehabilitationAct of 1973were entitled to considerablepersuasive authority 

in interpreting the ADA. The Court noted that the ADA's definition of disability was drawn nearly 

verbatim from the definition of "handicapped individual" in the Rehabilitation Act, 29 U.S.C. § 

706(8)(B), and observed that "Congress' repetition of a well-established term generally implies that 

Congress intended the term to be construed in accordance with pre-existing regulatory interpretations." 

122 S.Ct. at 689. Ironically, having recognized the significance of Rehabilitation Act regulations in 

interpreting the ADA, the Court indicated that the persuasive authority of the EEOC's ADA regulations 

regarding the definition of disability was "less clear." Id. The Court followed its approach in Sutton, 

Murphy, and Kirkingburg, reiterating that the ADA did not assign any agency authority to issue 

regulations interpreting the term "disability," but, since the parties had accepted the EEOC ADA 

regulations as reasonable, the Court would assume without deciding that they were valid and without 

deciding "what level of deference, if any," they are due. Id. 

Thus, in various instances, sometimes in the same case, the Court has given widely varying degrees 

of deference to regulations issued by the agencies statutorily designated to issue regulations 

implementing parts of ADA. 

N. REMEDIES 

1. Generally 

In Barnes v. Gorman, 122 S.Ct. 2097, 2100 (2002), the Court noted that the "remedies, procedures, and 

rights" for violations of § 202 of the ADA (Title II) and Section 504 of the Rehabilitation Act are 

coextensive with the remedies available in a private cause of action brought under Title VI of the Civil 

Rights Act of 1964. The Court also indicated that the availability of remedies under Title VI, and 

consequentlyofTitle IIoftheADA,shouldbe determinedwithreferenceto a "contractlawanalogy" that 

asks whether the recipient of federal funds implicitly consented to the remedy by accepting the funds. 

Whilethe Barnes case addressed punitive damages,itremainsto be seenwhatimpact,if any,the contract 

analogy may have regarding other types of remedies. 

In Equal Employment Opportunity Commission v. Waffle House, Inc., 122 S.Ct. 754 (2002) the Court 

ruled that the EEOC's ability to pursue victim-specific remedies, such as backpay, reinstatement, and 

damages, against an employer for allegedly violating the ADA was not restricted by an agreement 

between an employer and an employee to arbitrate any employment-related dispute or claim. 

89

2. Private right of action 

In Barnes v. Gorman, 122 S.Ct. 2097, 2100 (2002), the Court recognized that its prior cases had 

established "beyond dispute" that there is an implied right of private individuals to sue under Title VI of 

the Civil Rights Act of 1964. Since § 202 of Title II of the ADA shares the "remedies, procedures, and 

rights" of Title VI, a private right of action clearly is available for violations of § 202. 

3. Attorney's Fees 

In Buckhannon Board and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 

598, 121 S.Ct. 1835 (2001), the Court rejected the “catalyst theory,” previously adopted by most of 

the U.S. Courts of Appeals, under which a plaintiff was considered a “prevailing party” eligible to 

be awarded attorney’s fees if it achieved its desired result because the lawsuit brought about a 

voluntary change in the defendant’s conduct. In Buckhannon, the Supreme Court required a 

judgment, consent decree, or settlement in a party’s favor before the party would be eligible for 

attorney’s fees. This decision representeda significantturnaround from the previous prevailing view 

and practice. 

4. Punitive Damages 

In Barnes v. Gorman, 122 S.Ct. 2097 (2002), the Court ruled that punitive damages may not be 

awarded in private suits brought under Title VI of the 1964 Civil Rights Act, under 202 of the ADA, 

nor under Section 504 of the Rehabilitation Act. The ruling removes a potent potential sanction 

against egregious violators of these laws. 

90