NCD

National Council on Disability 

Policy Brief Series: Righting the ADA 

No. 14

The Supreme Court’s ADA Decisions Regarding the Not-Just-OneJob Standard

May 20, 2003
Under the definition of disability in the Americans with Disabilities Act (ADA), a condition 

constitutes a disability if it "substantially limits one or more of the major life activities of such 

individual" (42 U.S.C. § 12102(2)(A)). A prior policy brief in the National Council on 

Disability's Righting the ADA series discusses the confusion the Supreme Court has provoked 

regarding whether working should be recognized as a major life activity (see 

http://www.ncd.gov/newsroom/publications/limitation.html). Because, however, regulations 

implementing the ADA and Section 504 of the Rehabilitation Act, and the Senate and House 

ADA committee reports all explicitly include "working" as a major life activity;1

 and all nine 

Justices of the Supreme Court had previously discussed working as a major life activity in 

separate opinions in Bragdon v. Abbott,

2

 the lower courts have generally continued to accept that 

working is a major life activity, either holding outright3 or assuming, with reservations,4 that it is. 

For some years, the Equal Employment Opportunity Commission (EEOC) has advanced a 

restrictive interpretation of the standard that must be met to prove that one is substantially 

limited in working. The EEOC has taken the position that, to establish a substantial limitation 

regarding the activity of working, a complainant must demonstrate more than an actual or 

perceived inability to perform a specific job; it has required ADA plaintiffs to show that they are 

"significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in 

various classes...5

“ The Supreme Court has not explicitly endorsed the EEOC's position on this 

issue, but the Court has referred to and quoted the EEOC standard in the circumstances of 

several ADA cases. This policy brief examines the origin and consequences of the constricted 

standard imposed by the EEOC, the Court's statements about the EEOC's approach, and the 

implications of the Court's indecisive but suggestive position on efforts by ADA complainants to 

demonstrate that they have a substantial limitation on the major life activity of working. 

THE ORIGINS OF THE NOT-JUST-ONE-JOB STANDARD 

The idea that proof that one cannot perform the essential functions of a particular job (or is 

perceived by an employer as being unable to do so) is insufficient to establish a substantial 

limitation in working has its roots in a 1980 decision of a federal district court judge in Hawaii in 

the case of E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D.Haw. 1980). The case was 

decided under the Rehabilitation Act of 1973, and interpreted the three-prong definition of 

"individual with handicaps" that is the direct predecessor and substantially identical to the 

definition of disability in the ADA. Faced with conflicting contentions that a plaintiff with a 

"congenital back abnormality" should, on the one hand, be required to prove that his condition 

"impeded activities relevant to many or most jobs,"6

 or, to the contrary, that the definition of 

disability includes "every individual with an impairment which is a current bar to employment 

which the individual is currently capable of performing,"7

 the district court forged its own unique 

stance. The court rejected the argument that the statutory definition includes anyone who is 

refused a particular job because of a real or perceived impairment, but it nonetheless ruled that 

the plaintiff had been "regarded as having" an impairment by virtue of his having been refused 

The Americans with 

Disabilities Act Policy Brief 

2 Series: Righting the ADA 
an apprentice position because of back abnormalities8

. It reasoned that "the focus cannot be on 

simply the job criteria or qualifications used by the individual employer; those criteria or 

qualifications must be assumed to be in use generally. . . . In evaluating whether there is a 

substantial handicap to employment, it must be assumed that all employers offering the same job 

or similar jobs would use the same requirement or screening process.9

“ Otherwise, according to 

the court, in situations involving "some aberrational type of job qualification," an employer 

"discriminating against a qualified handicapped individual would be rewarded if his reason for 

rejecting the applicant were ridiculous enough.10“ 

The E.E. Black analysis had two principle elements: first, that rejection from a single particular 

job because of an impairment does not automatically establish a substantial limitation of 

working; and, second, that the same exclusionary requirement or screening process must be 

attributed to all employers with the same or similar positions. In combination, these two 

elements would only make it difficult for a plaintiff to demonstrate a substantial limitation of 

working in circumstances where the job in question was a unique or very rare one not available 

from other employers. Surprisingly, subsequent court decisions and the EEOC which have relied 

upon the E.E. Black decision have ignored the second element of the ruling, which in fact 

determined the favorable outcome for the plaintiff in the E.E. Black case itself. They have 

inaccurately treated the E.E. Black ruling as if it had endorsed the position that a plaintiff must 

demonstrate that his or her impairment "impeded activities relevant to many or most jobs," when 

the court expressly rejected that contention.11 

Relying upon such a mischaracterization of the E.E. Black decision, in 1986 the Court of 

Appeals for the Fourth Circuit issued its decision in Forrisi v. Bowen, 794 F.2d 931, 932 (4th 

Cir. 1986), in which it ruled that a utility systems repairman dismissed from his job because of 

his acrophobia had not proven that he was "regarded as" having a disability. The court held that 

the evidence in the case had shown that "[f]ar from being regarded as having a `substantial 

limitation* in employability, Forrisi was seen as unsuited for one position in one plant — and 

nothing more.12“ The court said that the Rehabilitation Act was not intended to address such an 

"isolated mismatch of employer and employee.13“ Apart from disregarding the second element of 

the E.E. Black ruling, which might have produced an opposite result in the Forrisi case, the 

Fourth Circuit noted that Mr. Forrisi was able to be hired in similar positions both before and 

after the incident challenged in his lawsuit, and that he had testified that his condition had never 

affected his life or his ability to get a job other than this single incident14. Such evidence would 

suggest that Mr. Forrisi did not have an actual substantial limitation on his ability to work, but it 

is completely irrelevant to his contention that his employer regarded him as having a 

substantially limiting condition. 

The Forrisi ruling influenced some other courts to take the position that an employer's exclusion 

of a worker from a particular job because of an actual or perceived impairment is not sufficient 

to demonstrate that the employer regarded the worker as substantially limited in ability to 

work15. Some courts, however, took a considerably more expansive approach to the definition 

The Americans with 

Disabilities Act Policy Brief 

3 Series: Righting the ADA 
than that of the Forrisi court16. In direct contrast to the Forrisi decision is Thornhill v. Marsh,17 

in which the Ninth Circuit held that a man discharged from a job because the Army Corps of 

Engineers erroneously interpreted the consequences of his congenital spine abnormality satisfied 

the statutory definition of "individual with handicaps.18“ The plaintiff met the "regarded as" 

criteria because of "the congenital deformity of his spine which the Corps perceived as imposing 

a disqualifying limitation on his ability to lift weight.19“ The court made no suggestion of a need 

to show that his perceived impairment would have an impact on his employability beyond the 

immediate position from which he had been discharged. In Doe v. New York University,20 the 

Second Circuit observed, regarding the definition of "individual with handicaps," that "its 

legislative history . . . indicates that the definition is not to be construed in a [stingy] fashion.21“ 

The court ruled that a medical student denied readmission because of psychiatric problems was 

"regarded as having" a disability, and it applied the definitional phraseology liberally by 

characterizing her as having a "substantial limitation on a major life activity, the ability to handle 

stressful situations of the type faced in a medical training milieu."22 

In 1987, the Supreme Court provided some perspective on this issue in its decision in School 

Board of Nassau County v. Arline, 480 U.S. 273 (1987). It recognized that "Congress plainly 

intended the Act to cover persons with a physical or mental impairment (whether actual, past, or 

perceived) that substantially limited one's ability to work.23“ The Court noted the Senate Report's 

example of a person "regarded as" having a disability — "a person with some kind of visible 

physical impairment which in fact does not substantially limit that person's functioning.24“ The 

Court declared that "[s]uch an impairment might not diminish a person's physical or mental 

capabilities, but could nevertheless substantially limit that person's ability to work as a result of 

the negative reactions of others to the impairment.25“ It also quoted from the legislative history 

of Section 504 Senator Mondale's description of a situation to be addressed by the legislation — 

that of a woman disabled by arthritis who was denied "a job" not because she could not do the 

work but because "college trustees [thought] `normal students shouldn't see her.'26“ Neither 

Senator Mondale nor the Court suggested that such a plaintiff would have to show that she 

would also be excluded from other positions. 

ADA LEGISLATIVE HISTORY 

With the judicial decisions discussed in the prior section as a backdrop, Congress began its 

consideration of the legislation that became the ADA. The legislative history of the Americans 

with Disabilities Act offers a bit of support for the notion that exclusion because of a physical or 

mental impairment that prevents the individual from performing a single specific job with unique 

qualifications is not enough to establish a disability under the first prong of the definition (actual 

disability). The report of the House Committee on the Judiciary declared: 

A person with an impairment who is discriminated against in employment is . . . limited 

in the major life activity of working. However, a person who is limited in his or her 

The Americans with 

Disabilities Act Policy Brief 

4 Series: Righting the ADA 
ability to perform only a particular job, because of circumstances unique to that job site 

or the materials used, may not be substantially limited in the major life activity of 

working. For example, an applicant whose trade is painting would not be substantially 

limited in the major life activity of working if he has a mild allergy to a specialized paint 

used by one employer which is not generally used in the field in which the painter 

works.27 

Under the "regarded as" prong of the definition of "disability," however, the legislative history of 

the ADA indicates considerable congressional intent to reject the Forrisi "not just one job" 

approach. The Senate Committee Report pointedly cited as examples of individuals included 

within the "regarded as" concept "people who are rejected for a particular job for which they 

apply because of findings of a back abnormality in an x-ray, notwithstanding the absence of any 

symptoms, or people who are rejected for a particular job solely because they wear hearing aids 

. . . .28“ The report added: 

A person who is excluded from any activity covered under this Act or is otherwise 

discriminated against because of a covered entity*s negative attitudes towards disability 

is being treated as having a disability which affects a major life activity. For example, if a 

public accommodation, such as a restaurant, refused entry to a person with cerebral palsy 

because of that person's physical appearance, that person would be covered under the 

third prong of the definition. Similarly, if an employer refuses to hire someone because of 

a fear of the "negative reactions" of others to the individual, or because of the employer*s 

perception that the applicant had a disability which prevented that person from working, 

that person would be covered under the third prong.29 

Not only is there no suggestion of a need to show that the individual is limited in connection 

with other jobs or participation in other programs, but in support of the quoted language the 

report cited Thornhill and Doe v. Centinela Hospital30 — both of which differ from the Forrisi 

approach.31 Similar sentiments and the same case citations were repeated in the report of the 

House Committee on Education and Labor.32 

The House Committee on the Judiciary used language that differed somewhat from that in the 

other reports but to similar effect. It noted that 

a person who is rejected from a job because of the myths, fears, and stereotypes 

associated with disabilities would be covered under this third test, whether or not the 

employer*s perception was shared by others in the field and whether or not the person's 

physical or mental condition would be considered a disability under the first or second 

part of the definition.33 

To manifest its intent even further, the Judiciary Committee declared: 

The Americans with 

Disabilities Act Policy Brief 

5 Series: Righting the ADA 
In the employment context, if a person is disqualified on the basis of an actual or 

perceived physical or mental condition, and the employer can articulate no legitimate 

job-related reason for the rejection, a perceived concern about employing persons with 

disabilities could be inferred and the plaintiff would qualify for coverage under the 

"regarded as" test.34 

Under the Judiciary Committee's approach, excluding a person from a job or activity because of 

an actual or perceived physical or mental impairment would create an inference that the excluded 

individual has been "regarded as" having a disability, and the employer would be forced to 

defend the merits of its exclusion of the individual. Under the language of the other committees, 

exclusion from a single job because of a physical or mental impairment would establish coverage 

of the excluded individual as having been "regarded as" having a disability. 

THE EEOC STANDARD 

In 1991, when the EEOC issued its regulations implementing the employment provisions of the 

ADA, the Commission largely disregarded the statements in the legislative history regarding the 

standard for proving substantial limitation on the activity of working, and the court decisions 

supporting such a standard. Instead, the regulations declared that, with respect to the major life 

activity of working, 

[t]he term substantially limits means 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).

As authority for this standard, the EEOC regulatory guidance35 cited the E.E. Black, Ltd. v. 

Marshall and Forrisi v. Bowen decisions, and the ruling in a third case — Jasany v. United 

States Postal Serv36. In the Jasany case, the court ruled that a mild case of strabismus ("crossed 

eyes") was not a disability because it did not substantially limit a major life activity; the court 

noted that "the parties stipulated that [the plaintiff*s] condition never had any effect whatsoever 

on any of his activities.37“ Significantly, however, the court considered only the first prong of the 

statutory definition and never discussed or even mentioned the "regarded as" prong38. In its 

report PROMISES TO KEEP: A DECADE OF FEDERAL ENFORCEMENT OF THE AMERICANS WITH 

DISABILITIES ACT (2000), NCD has termed the cases cited by the EEOC as "dubious judicial 

precedents" and described the EEOC as "ignoring other judicial precedents, explicitly mentioned 

in ADA committee reports, to the contrary" (id. at 214). NCD concluded that "the precedents did 

not compel the result EEOC arrived at" and that "the EEOC's analysis was derived from a 

selective and partial marshaling of the case law.” Id. 

The Americans with 

Disabilities Act Policy Brief 

6 Series: Righting the ADA 
The EEOC's citation of the three cases illustrates a critical difficulty with its position. Two of the 

cited cases — E.E. Black and Forrisi – involved claims that the plaintiffs were covered under the 

third prong of the ADA definition of disability because they had been "regarded as" having a 

disability. The Jasany decision, on the other hand, addressed only the question of whether the 

plaintiff actually had a disabling condition under the first prong of the definition. The EEOC did 

not make it clear whether it intended its class-of-jobs-or-broad-range-of-jobs and the single-jobis-not-sufficient criteria to apply only under the first prong of the definition, or to the third prong 

as well. 

Arguably, the EEOC limitation as to what is substantially limiting in regard to working makes 

some sense in the context of the first prong (actual disability) of the definition of disability. Such 

an approach would be consistent with the example in the ADA report of the House Committee 

on the Judiciary, quoted above, regarding a painter allergic to a specialized paint used only by 

one employer39. Such a singular, idiosyncratic allergy would not, in itself, substantially limit the 

major life activity of working and thus would not constitute an actual disability under the first 

prong of the definition. 

In fact, some language in the interpretive guidance EEOC issued to accompany its ADA 

regulations suggests that the agency did not intend its restrictive standard for demonstrating 

substantial limitation on working to apply to determinations, under the third prong, whether 

employers regarded workers as having substantially limiting impairments. In discussing the 

"regarded as" prong of the definition of disability, the regulatory guidance cited an example of a 

person with "controlled high blood pressure that is not substantially limiting," and declared "[i]f 

an employer reassigns the individual to less strenuous work because of unsubstantiated fears that 

the individual will suffer a heart attack if he or she continues to perform strenuous work, the 

employer would be regarding the individual as disabled" (29 C.F.R. pt. 1630, app. (commentary 

on §1630.2(l)). The guidance also discussed the situations of persons with "a prominent facial 

scar or disfigurement," or with "a condition that periodically causes an involuntary jerk of the 

head but does not limit the individual's major life activities," and stated that "[i]f an employer 

discriminates against such an individual because of the negative reactions of customers, the 

employer would be regarding the individual as disabled and acting on the basis of that perceived 

disability" (id., citing the ADA reports of the Senate, and the House Committees of Education 

and Labor and of the Judiciary). 

Most explicitly, the interpretive guidance declared that "[a]n individual rejected from a job 

because of the `myths, fears and stereotypes' associated with disabilities would be covered under 

this part of the definition of disability, whether or not the employer's or other covered entity's 

perception were shared by others in the field . . . ." (29 C.F.R. pt. 1630, app. (commentary on 

§1630.2(l)) (emphasis added)). Thus, the EEOC*s regulatory guidance indicates that exclusion 

from a single position may be sufficient to satisfy the third prong of the definition. 

The Americans with 

Disabilities Act Policy Brief 

7 Series: Righting the ADA 
The EEOC considers exclusions based on "common attitudinal barriers" toward individuals with 

disabilities — including "concerns regarding productivity, safety, insurance, liability, attendance, 

cost of accommodation and accessibility, workers* compensation costs, and acceptance by 

coworkers and customers" —to constitute discrimination based on perceptions of disability (id.). 

Thus, if an individual with a physical or mental impairment can show that he or she was 

terminated from or not hired for a particular job because of that impairment, and the employer 

took the exclusionary action because of one of the listed concerns, such a showing may be 

sufficient to establish that the individual was "regarded as having" a substantially limiting 

impairment. According to the EEOC, unless the employer can articulate a nondiscriminatory 

reason for the employment action in such a situation, "an inference that the employer is acting on 

the basis of `myth, fear or stereotype' can be drawn" (id.). The EEOC has stressed such 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 in its compliance guidance40. Such an 

approach, establishing coverage under the third prong for exclusion from a single job, would, in 

some circumstances, alleviate the impact of the EEOC's contrary analysis under the first prong. 

Despite such statements, however, and the EEOC's declarations that its interpretation of what is 

substantially limiting to working is not intended to place onerous burdens of evidence and proof 

on potential plaintiffs,41 the EEOC's position on this issue has had some serious deficiencies. 

Most critically, the Commission has never stated in the text of its regulations that its class-ofjobs-or-broad-range-of-jobs and the single-job-is-not-sufficient standards apply only under the 

first prong of the definition, and not to the third prong. If the EEOC intended this to be the case, 

it should have said so, explicitly and clearly, in its regulations. 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 is insufficient to constitute being "regarded as" 

having a disability under the third prong of the definition, the EEOC's failure to discount this 

possibility has engendered ambiguity. The absence of such a statement has invited the courts to 

follow EEOC's restrictive standard for demonstrating substantial limitation on working, spelled 

out in the regulation, under the third prong, as well as the first, of the definition of disability; and 

many courts have accepted that invitation. 

The benefits of EEOC's "myths, fears, and stereotypes" approach to proving that an employer 

regarded a person as having a disability are largely illusory. It shifts the issue to be proven away 

from what the employer did and toward what the employer's motivation was. Evidence of what 

was in the mind of a person in taking a certain action is notoriously hard to produce. An 

employer that is silent about its motivation will ordinarily be invulnerable to allegations that it 

was acting based on myths, fears, or stereotypes. Since the initial regulations implementing the 

three-prong definition of disability were issued in 1977, it has been accepted that a person is 

"regarded as" having a disability if he or she is "treated as having" a substantially limiting 

impairment,42 and the EEOC's ADA regulations reiterate that position43. Under the EEOC's 

standard for demonstrating substantial limitation of working, however, the question of how one 

The Americans with 

Disabilities Act Policy Brief 

8 Series: Righting the ADA 
was treated becomes subordinate to the issue of what the employer was thinking. Because of 

these and other problems, various legal commentators have been strongly critical of the position 

of the EEOC on the standards for proving substantial limitation of working.44 

In its PROMISES TO KEEP report, NCD criticized the EEOC's formulation of restrictive standards 

for demonstrating substantial limitation of the activity of working, creating constraints not based 

on any statutory language. NCD argued 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.45“ NCD formally 

recommended that the EEOC 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.46“ More specifically, NCD called upon the 

EEOC to clarify "that the third prong of the definition of individual with a disability includes any 

American who suffers discrimination on the basis of physical or mental impairment, even if that 

discrimination occurs on only one occasion in connection with one particular job with a 

particular employer ....47“ Unfortunately, the EEOC did not see fit to follow such 

recommendations. 

THE SUPREME COURT'S STATEMENTS REGARDING THE STANDARD 

Technically, the Supreme Court has not yet made a binding substantive ruling on whether proof 

that one cannot perform the essential functions of a particular job (or is perceived by an 

employer as being unable to do so) is sufficient to establish a substantial limitation in working. 

Yet, the Court's treatment of the EEOC's regulatory position on this issue has, arguably at least, 

been nearly tantamount to ruling that such evidence is insufficient. 

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. The parties in the Sutton case, and consequently the Court, assumed that the not-justThe Americans with 

Disabilities Act Policy Brief 

9 Series: Righting the ADA 
one-job standard applies under the third prong and that plaintiffs must demonstrate that an 

employer regarded them as unable to perform either a class of jobs or a broad range of jobs in 

various classes. Based upon the EEOC regulations, the Court concluded that "[w]hen 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. . . 

.

48“ The Court elaborated as follows: 

To be substantially limited in the major life activity of working, then, one must be 

precluded from more than one type of job, a specialized job or a particular job of choice. 

If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are 

available, one is not precluded from a substantial class of jobs. Similarly, if a host of 

different types of jobs are available, one is not precluded from a broad range of jobs.49 

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 employment50. 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 impairment51. Thus, the Court assumed without deciding that the 

EEOC's standards were valid and then, apparently under the impression that this was the EEOC's 

position, applied the not-just-one-job standard under the third prong of the definition. 

Compounding this view, by construing global airline pilot to be a single job, the Court made an 

expansive interpretation of the term "a job," far broader than the EEOC's conception of the 

unique circumstances of a particular employment position of a particular employer, and 

extending well beyond the situation implicated under the E.E. Black decision. The Court 

disregarded the common meaning of a job as a paid position with a specific employer (e.g., "I 

got a job at X restaurant"), and instead interpreted it to mean a type of position (e.g., waiter, 

dishwasher, bookkeeper), without regard to any particular employer who offers it — a far more 

extensive reading. 

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. 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 (id. at 524). The Court simply took it for granted, 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 

The Americans with 

Disabilities Act Policy Brief 

10 Series: Righting the ADA 
deciding, the Court's application of the "class of jobs or a broad range of jobs" standard, without 

expressing any misgivings or hesitation, its facile analytic leap to the conclusion that this 

standard applies under the third prong of the definition, and its broad interpretation of what 

constitutes a single job could have significant negative consequences. Unless they are examined 

with a precise and cautious eye, these decisions can easily be read as having endorsed the EEOC 

standard on demonstrating substantial limitation on working and its applicability under the 

"regarded as" prong of the definition, weakening the chances of contrary rulings in the future. 

This is particularly true because in these decisions the Court directly rejected another of the 

EEOC's positions — on mitigating measures — while seeming to follow the single-job-is-notsufficient standard. 

The Court did nothing to rectify this situation in Toyota Motor 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. Indeed, the Court's ruling that the class-or-broad-range-of-activities does not apply in 

nonemployment contexts can be viewed as reinforcing the implication that it does apply in 

regard to the major life activity of working. 

IMPLICATIONS OF THE SUPREME COURT'S DECISIONS 

In the absence of any effort by the EEOC to stem the tide, the Supreme Court's rulings in the 

Sutton, Murphy, and Williams cases have accelerated the trend in the lower courts to require 

ADA plaintiffs seeking to show they are substantially limited in the activity of working to 

demonstrate that they are unable to perform either a class of jobs or a broad range of jobs, or that 

the employer regarded them as unable to perform either a class of jobs or a broad range of jobs. 

This has proven to be a very onerous hurdle, or, as the Court of Appeals for the First Circuit has 

described it, such a plaintiff "must make a weighty showing."52 

In Duncan v. WMATA,

53 for example, the Court of Appeals for the District of Columbia ruled 

that a transit employee who had been terminated because of his back condition was not 

substantially limited in working. The worker had introduced medical testimony substantiating his 

condition and lifting restrictions, and presented evidence regarding his age, limited skills, 

education, experience, and inability to find comparable employment after discharge (the only job 

the plaintiff ultimately found was at 1/3 his former salary). The court concluded, however, that 

the plaintiff had failed to produce sufficient evidence of the number and types of jobs in the local 

employment market to show that he was disqualified from a class or broad range of jobs54. As a 

result, the Court of Appeals overturned a jury verdict awarding the plaintiff $125,000 on his 

wrongful termination claim and $125,000 on his reasonable accommodation claim, as well as the 

lower court's order awarding back pay and reinstatement.55 

The Americans with 

Disabilities Act Policy Brief 

11 Series: Righting the ADA 
Likewise, in Broussard v. University of California,

56 the Court of Appeals for the Ninth Circuit, 

relying on the Supreme Court's ruling in Sutton, held that an animal technician's "inability to 

perform the specialized job of animal technician for the transgenic mice does not constitute a 

substantial limitation" in working. The Ninth Circuit found that a vocational expert's 

determination that Broussard was precluded from 40 percent of available jobs in the San 

Francisco Bay area was insufficient to establish substantial limitation of working. It viewed such 

evidence as inadequate because it did not adequately take the plaintiff's vocational abilities into 

account and because it did not include a more precise comparison of the jobs she was able to do 

before and after the onset of her condition.57 

In Rhoads v. FDIC,

58 the Court of Appeals for the Fourth Circuit held that an individual with 

asthma and related migraine headaches, who experienced recurring bouts of bronchitis, 

pneumonia, severe lung infections and cluster-migraine syndrome when exposed to second-hand 

smoke at her office, was not substantially limited in working because she "established only that 

she was unable to function in one particular smoke-infested office.” The Fourth Circuit found 

that the plaintiff had failed to "show, as required, that she is generally foreclosed from jobs 

utilizing her skills because she suffers from smoke-induced asthma and migraines.59“ The 

plaintiff had argued that an employer who is unwilling to provide reasonable accommodations to 

its employees (such as enforcing a smoking ban) should not be allowed to point to other 

employers who are willing to provide such accommodations as proof that an employee with a 

disability is not precluded from employment generally. While finding that failure to enforce a 

smoking ban "is hardly commendable," the Fourth Circuit rejected plaintiff's argument and ruled 

that she had failed to establish that she was precluded from a broad range of jobs.60 

In other cases, a pipefitter rigger with a seizure disorder — not controlled by medication — was 

held not substantially limited in the major life activity of working, even though he was fired (two 

days after disclosing his seizure disorder) for refusing to work at elevation because there was no 

place for him to tie his safety belt into a life line and he considered the risk of having a seizure 

and falling to be too great61. An employee with a back injury was ruled not substantially limited 

in working even though his condition eliminated him from 47 percent of jobs in his job market62. 

A customer service representative whose HIV status was construed as precluding him from 

customer service positions was held not to be substantially limited in working because he had 

not shown that he was precluded from a class of jobs or a broad range of jobs.63 

These cases serve to illustrate that the lower courts are requiring plaintiffs to shoulder quite a 

heavy burden of proof to demonstrate that their physical or mental impairments substantially 

limit their ability to work. In most cases, medical and vocational expert testimony is necessary to 

demonstrate "a significant[] restrict[ion] 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.” Even with such experts, necessary data about job opportunities for people 

whose training, skills, and abilities are comparable to those of the plaintiff may or may not be 

available. And to the extent that ability to perform comparable jobs may depend upon the extent 

The Americans with 

Disabilities Act Policy Brief 

12 Series: Righting the ADA 
to which other employers have similar conditions, practices, and restrictions as the defendant 

employer, and upon other employers' willingness or unwillingness to make necessary 

accommodations and adjustments to the plaintiff's condition, such evidence may become very 

difficult or impossible to obtain, or may become largely conjectural evidence that courts are 

often inclined to discount. Moreover, a plaintiff's successful array of the requisite evidence of 

difficulty performing a class or a broad range of jobs may be undercut by evidence that the 

plaintiff was able to find other employment.64 

If plaintiffs can marshal sufficient demographic data and other evidence establishing that they 

are unable to work in a "class of jobs" or "broad range of jobs," they must simultaneously be 

careful to maintain that, at least with reasonable accommodations, they are still "qualified" to 

perform the job in question65. The tension between having to show that one is substantially 

limited in ability to work but yet is still qualified to do the job has been described by courts and 

other authorities as a "Catch 22.66“ One federal court described the necessity of the plaintiff 

proving that she was substantially limited in working and simultaneously was qualified as "two 

conflicting elements" of establishing that one is included in "the ADA's protected class.67“ 

Another went so far as to suggest that it is impossible to be substantially limited in working and 

simultaneously qualified for the particular job.68 

In addition to cases in which plaintiffs have had difficulty establishing an actual substantial 

limitation on the major life activity of working, numerous other plaintiffs have attempted to 

show that their employers regarded them as having such a substantial limitation. In the wake of 

the Supreme Court's decisions regarding the standard for proving substantial limitation to one's 

ability to work, plaintiffs have found the going quite difficult. Employers can maintain that they 

had no opinion as to whether the plaintiff could perform a range or class of jobs, but had 

concerns only regarding the individual's ability to perform the particular job in question. In the 

absence of incriminating statements by the employer, establishing coverage under the "regarded 

as" prong becomes virtually an impossible task. As a result, individuals who clearly were 

discriminated against because of "myths, fears, and stereotypes" and other negative attitudes 

toward disability have nonetheless frequently been found not to be protected under the ADA. 

In the case of EEOC v. Rockwell Int'l Corp.,

69 for example, an employer refused to hire over 70 

entry-level job applicants who failed nerve conduction tests. Though the applicants did not have 

any medical impairments, they were not hired on the grounds that failing the nerve conduction 

test was an indication that the applicants might suffer from neuropathy and therefore might be 

susceptible to injuries from frequent repetitive motions or the use of vibratory power tools. The 

EEOC argued that these individuals were denied jobs and thus discriminated against because 

they had been regarded as persons with substantially limiting impairments. The Court of Appeals 

for the Seventh Circuit ruled, however, that the EEOC had failed to submit sufficient evidence to 

show that the applicants were regarded as substantially limited in working. Because the EEOC 

had failed to introduce demographic or other data regarding the surrounding labor market, the 

court ruled, the EEOC had only established that the employer perceived the applicants as unable 

The Americans with 

Disabilities Act Policy Brief 

13 Series: Righting the ADA 
to perform the specific entry level jobs at Rockwell International Corp., rather than unable to 

perform a class of jobs or a broad range of jobs.70 

In Sorenson v. University of Utah,

71 a flight nurse with multiple sclerosis (MS) was involuntarily 

reassigned because of her employer's concerns regarding the impact her MS would have on her 

ability to do her job. Despite assurances from the nurse's neurologist that she could perform the 

essential functions of a flight nurse, and despite the fact that after her diagnosis the nurse 

successfully worked as a regular nurse in the burn unit, the surgical intensive care unit, and the 

emergency room, the nurse's supervisors remained concerned that she "would suffer from an 

episode or problem associated with her MS while on duty," and they refused to reinstate her72. 

The Court of Appeals for the Tenth Circuit ruled that the nurse was not protected by the ADA, 

because the hospital had not regarded her as substantially limited in working. Rather, the 

hospital merely perceived the nurse as unable to perform the job of flight nurse; in the court's 

view, the fact that the hospital continued to employ the nurse as a burn unit, surgical ICU, and 

emergency room nurse showed that the hospital did not regard her as unable to perform a class of 

jobs or broad range of jobs.73 

In Giordano v. City of New York,

74 a police patrol officer who took anti-coagulant medication 

following aortic valve replacement surgery was terminated because of the fear that he could 

sustain catastrophic bleeding if he was injured on the job. The Court of Appeals for the Second 

Circuit ruled that the New York Police Department did not regard the officer as substantially 

limited in working. At most, the court found, the officer's evidence showed that the Department 

regarded the officer as "disabled from police or other investigative or security jobs that involve a 

substantial risk of physical confrontation.75“ This, the court held, was not sufficient to establish 

that the Department regarded the officer as substantially limited in working a "broad class of 

jobs," and thus was insufficient to establish protection under the ADA.76 

The decisions discussed here are only a small sampling of a large number of cases in which 

plaintiffs who have been fired, refused employment, or otherwise disadvantaged in the 

workplace because of real or perceived physical or mental impairments, have nonetheless been 

found not to be substantially limited in working77. Plaintiffs who seek to prove that their 

employers regarded them as substantially limited in working face all the problems, discussed 

above, involved in trying to present adequate evidence regarding "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.” In addition, such evidence will often have an 

even more conjectural character because the nature or degree of the limitation at issue may be 

more in the perception of the employer than real. For example, a plaintiff may need to show that 

"if I had X condition which my employer believed I did, then it would limit me in the following 

ways, and that would limit me in the ability to do the following jobs.” Moreover, as noted above, 

such cases often will involve the difficult challenge of proving what exactly was in the mind of 

the employer. 

The Americans with 

Disabilities Act Policy Brief 

14 Series: Righting the ADA 
Of course, despite the demanding and at times oppositional evidentiary burdens involved, some 

plaintiffs manage to surmount them and to convince courts that they are both substantially 

limited in regard to working and also are qualified for the particular position at issue78. But for 

most potential ADA claimants, the extremely onerous standards applied by the courts for 

establishing substantial limitation of the activity of working constitute a daunting and at times 

insurmountable obstacle. 

CONCLUSION 

The notion that proof that a worker is not able to perform the essential functions of a particular 

job (or is perceived by an employer as being unable to do so) is insufficient to establish a 

substantial limitation of working grew out of a few court decisions under the Rehabilitation Act 

of 1973. Based upon such dubious, inadequate, and misinterpreted precedents, and ignoring a 

body of contrary decisions and statements in the ADA legislative history calling for a less 

demanding standard, the EEOC devised in its ADA regulations a requirement that proving 

substantial limitation of the major life activity of working requires an ADA claimant to 

demonstrate significant restriction "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 EEOC never definitively clarified whether this standard should be 

applied under the third prong ("regarded as") of the definition of disability or only under the first 

prong (actual disability). 

In a technical sense, the Supreme Court has yet to rule on whether proof that one cannot perform 

the essential functions of a particular job (or is perceived by an employer as being unable to do 

so) is sufficient to establish a substantial limitation in working. In its decisions in the Sutton, 

Murphy, and Williams cases, the Supreme Court raised some questions about the overall 

authority of the EEOC to issue regulations construing the definition of disability, but the Court 

then assumed without deciding that the EEOC regulations interpreting the term "substantially 

limits" were reasonable and valid. In that context, the Court applied the EEOC's "class of jobs or 

a broad range of jobs" standard under both the first and third prongs of the ADA's definition of 

disability. 

The combination of the EEOC's requirement of proof that a person is restricted in a class or 

broad range of jobs, the EEOC's ambiguous stance as to whether that requirement also applies 

when plaintiffs seek to establish that their employers regarded them as substantially limited in 

working, and the Court's application of the EEOC standard to claims under both the first and 

third prongs has precipitated a torrent of lower court rulings that make it very difficult for 

plaintiffs to prove that they are or are regarded as being substantially limited in the activity of 

working. Whether they seek to establish that they are actually substantially limited in working or 

that their employer so regards them, ADA plaintiffs face demanding and at times antagonistic 

evidentiary burdens. For most potential ADA claimants, the extremely onerous standards applied 

The Americans with 

Disabilities Act Policy Brief 

15 Series: Righting the ADA 
by the courts for establishing substantial limitation of the activity of working constitute a 

formidable and sometimes insurmountable obstacle. 

This policy brief was written for the National Council on Disability by Professor Robert L. 

Burgdorf Jr. of the University of the District of Columbia, David A. Clarke School of Law. Some 

of the material about lower court decisions was derived in part from an earlier paper in the 

National Council on Disability's Righting the ADA Series. That paper, written by Sharon Perley 

Masling, Director of Legal Services, National Association of Protection and Advocacy Systems, 

is found on the NCD Web site at 

http://www.ncd.gov/newsroom/publications/decisionsimpact.html. 

ENDNOTES 

1. 29 C.F.R. § 1630.2(i); 45 C.F.R. § 84.3(j)(2)(ii); S. Rep. No. 101-116, at 22 (1989); H.R. 

Rep. No. 101-485, pt. 2 at 52 (1990) (Committee on Education and Labor); H.R. Rep. No. 101-

485, pt. 3 at 28 (1990) (Committee on the Judiciary). 

2. 524 U.S. 624, 638-39 (1998) (Justice Kennedy for the Court, joined by Justices Stevens, 

Souter, Ginsburg, and Breyer); id. at 664-65 (Ginsburg, J., concurring); id. at 659 (Rehnquist, 

C.J, concurring in the judgment in part and dissenting in part, joined by Justices Scalia and 

Thomas). 

3. See, e.g., E.E.O.C. v. J.B. Hunt Transport, Inc., 321 F.3d 69, 75-77 (2d Cir. 2003); Felix v. 

New York City Transit Authority, 324 F.3d 102, 105-06 (2d Cir., 2003); Huge v. General Motors 

Corp., 2003 WL 1795691, *2 (6th Cir. 2003); Peters v. City of Mauston, 311 F.3d 835, 843 (7th 

Cir. 2002); Blanks v. Southwestern Bell Communications, Inc., 310 F.3d 398, 401 (5th Cir. 

2002); Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1161 (10th Cir. 2002); Brunko v. Mercy 

Hosp., 260 F.3d 939, 941-42 (8th Cir. 2001). See also Henderson v. Ardco, Inc., 247 F.3d 645, 

652 (6th Cir. 2001) (holding that plaintiff had shown evidence sufficient to withstand summary 

judgment that her employer regarded her as disabled in working); Ross v. Campbell Soup Co., 

237 F.3d 701, 709 (6th Cir. 2001) ("the drafters of the ADA and its subsequent interpretive 

regulations clearly intended that plaintiffs who are mistakenly regarded as unable to work have a 

cause of action under the [ADA]"). 

4. See, e.g., Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1168 n. 5 (1st Cir. 2002); Orr v. 

Wal-Mart Stores, Inc., 297 F.3d 720, 725 n. 3 (8th Cir. 2000); Mahon v. Crowell, 295 F.3d 585, 

The Americans with 

Disabilities Act Policy Brief 

16 Series: Righting the ADA 
590 (6th Cir. 2002). 

5. 29 C.F.R. § 1630.2(j)(3)(i). 

6. 497 F.Supp. at 1094. 

7. Id. (quoting opinion of Donald Ellsburg, Ass't Sec'y of Labor, Employment Stds. Admin.). 

8. Id. at 1102. 

9. Id. at 1100 (emphasis added). 

10. Id. 

11. 497 F.Supp. at 1094. 

12. 794 F.2d at 935. 

13. Id. 

14. Id. at 934-35. 

15. See, e.g., Chandler v. City of Dallas, 2 F.3d 1385, 1392 (5th Cir. 1993); Welsh v. City of 

Tulsa, 977 F.2d 1415, 1417 (10th Cir. 1992); Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) 

(Forrisi ruling followed in dicta); Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992), cert. 

denied sub nom. Maulding v. Shalala, 113 S.Ct. 1255 (1993) (Forrisi ruling followed in dicta). 

16. See, e.g., Taylor v. U.S. Postal Service, 946 F.2d 1214, 1218 (6th Cir. 1991) (permitted 

"applicant to prove he was perceived as being handicapped by pointing to the fact that he did not 

possess a so-called job requirement due to physical impairment"); Fitzpatrick v. City of Atlanta, 

2 F.3d 1112, 1125-26 (11th Cir. 1993) ("impairment [pseudofolliculitis barbae], and the 

[plaintiff] firefighters' inability to shave that results from it, `substantially limit' the firefighters' 

ability to engage in the `major life activity' of work on account of the [defendants'] no-beard 

rule"); Cook v. State of Rhode Island, 10 F.3d 17, 26 (1st Cir. 1993) (jury could rationally 

conclude that defendant's perception of plaintiff applicant's impairment, as exhibited in its 

refusal to hire her for a particular position, foreclosed a sufficiently wide range of jobs to serve 

as proof of a substantial limitation). 

17. 866 F.2d 1182 (9th Cir. 1989). 

18. Id. at 1183. 

19. Id. at 1183-84. 

The Americans with 

Disabilities Act Policy Brief 

17 Series: Righting the ADA 
20. 666 F.2d 761 (2d Cir. 1981). 

21. Id. at 775. 

22. Id. 

23. 480 U.S. at 283 n. 10. 

24. Id. at 282, quoting S. Rep. No. 93-1297, at 64. 

25. Id. at 283. 

26. Id. at 283 n.9, quoting 117 Cong. Rec. 36761 (1972) (remarks of Senator Mondale). 

27. H.R. Rep. No. 101-485, pt. III at 29 (1990). 

28. S. Rep. No. 101-116, at 24 (1989) (emphasis added). 

29. Id. 

30. No. CV87-2514 PAR, 1988 WL 81776 (C.D. Cal. June 30, 1988). In Doe, a federal district 

court ruled that an individual who had been excluded from an alcohol and drug treatment 

program because of HIV infection had thereby been regarded as having an impairment affecting 

the major life activity of "learning." 

31. S. Rep. No. 101-116, at 24. 

32. H.R. Rep. No. 101-485, pt. II at 53-54 (1990). 

33. H.R. Rep. No. 101-485, pt. III, at 30 (emphasis added). 

34. Id. at 30-31. 

35. 29 C.F.R. pt. 1630, app. (commentary on §1630.2(j)). 

36. 755 F.2d 1244 (6th Cir. 1985). 

37. Id. at 1250. 

38. Id. at 1248-50. 

39. H.R. Rep. No. 101-485, pt. III at 29 (1990). 

40. EEOC, Compliance Manual § 902.5 (March 1995 guidance memorandum on the definition 

of disability). 

The Americans with 

Disabilities Act Policy Brief 

18 Series: Righting the ADA 
41. See 29 C.F.R. pt. 1630, app. (commentary on §1630.2(j)); 56 Fed. Reg. 35,728 (1991) 

(commentary on §1630.2(j)). 

42. See 45 C.F.R. § 84.3(j)(2)(iv). 

43. 29 C.F.R. § 1630.2(l)(3). 

44. See, e.g., Richard A. Bales, Once Is Enough: Evaluating When a Person Is Substantially 

Limited in Her Ability to Work, 11 HOFSTRA LAB. L. J. 203, 210-11 (1993); Robert L. Burgdorf 

Jr., "Substantially Limited" Protection from Disability Discrimination: The Special Treatment 

Model and Misconstructions of the Definition of Disability, 42 VILLANOVA L. REV. 409 (1997); 

Arlene B. Mayerson, Restoring Regard for the "Regarded as" Prong: Giving Effect to 

Congressional Intent, 42 VILL. L. REV. 587 (1997); Bonnie Poitras Tucker, The Supreme Court's 

Definition Under the ADA: A Return to the Dark Ages, 52 ALA. L. REV. 321, 356-61 (2000). 

45. Id. at 215. 

46. National Council on Disability, Promises to Keep: A Decade of Federal Enforcement of the 

Americans with Disabilities Act 236, Recommendation 36 (2000). 

47. Id. 

48. 527 U.S. at 491-92 (citations omitted). 

49. Id. 

50. Id. at 490. 

51. Id. at 493. 

52. Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1168 (1st Cir. 2002). In the factual 

situation before it, in which the plaintiff claimed that his alcoholism substantially limited his 

ability to work, the First Circuit ruled that "Bailey's summary judgment evidence is not up to this 

ambitious a task." Id. 

53. 240 F.3d 1110 (D.C.Cir. 2001) (en banc). 

54. Id. at 1115-1117. 

55. Id. at 1117. 

56. 192 F.3d 1252, 1259 (9th Cir. 1999). 

57. Id. at 1257-59. 

The Americans with 

Disabilities Act Policy Brief 

19 Series: Righting the ADA 
58. 257 F.3d 373, 388 (4th Cir. 2001). 

59. Id. 

60. Id. 

61. Whitson v. Union Boiler Co., 2002 WL 31205208 (6th Cir. 2002) 

62. Mahon v. Crowell, 295 F.3d 585, 590, 591-92 (6th Cir. 2002). 

63. Blanks v. Southwestern Bell Communications, Inc., 310 F.3d 398, 401 (5th Cir. 2002). 

64. See, e.g., Pollard v. High's of Balt., Inc., 281 F.3d 462, 471 (4th Cir. 2002) (employee 

with back injury was not substantially limited in working when she immediately obtained a new 

job). 

65. See 42 U.S.C. § 12112. 

66. See, e.g., Doe v. Region 13 Mental Hlth.-Mental Retard. Comm'n, 704 F.2d 1402, 1408 

(5th Cir. 1983); Tudyman v. United Airlines, 608 F. Supp. 739, 744 (C.D. Cal. 1984); National 

Council on the Handicapped, Toward Independence, Appendix A-25 (1986); Richard A. Bales, 

Once Is Enough: Evaluating When a Person Is Substantially Limited in Her Ability to Work, 11 

HOFSTRA LAB. L. J. 203, 239 (1993); Robert L. Burgdorf Jr., The Americans with Disabilities 

Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARVARD CIVIL 

RIGHTS — CIVIL LIBERTIES LAW REVIEW 413, 448 (1991); Jonathan Brown, Defining Disability 

in 2001: A Lower Court Odyssey, 23 WHITTIER L. REV. 355, 381-84 (2001); Arlene B. Mayerson 

and Kristan S. Mayer, Defining Disability After Sutton: Where Do We Go From Here?, 27 

HUMAN RIGHTS 13, 16 (2000). 

67. Williams v. Avnet, Inc., 910 F.Supp. 1124, 1131 (E.D.N.C. 1995). See also Doe v. New 

York University, 666 F.2d 761, 775 (2d Cir. 1981). 

68. Everette v. Runyon, 911 F.Supp. 180, 183-84 (E.D.N.C. 1995). Ironically, applying the 

Forrisi one-job-is-not-enough rationale to a situation in which the plaintiff claimed to have been 

discharged because of his impaired vision, the court in Everette ultimately concluded that 

Everette's condition was too insubstantial to amount to a disability and so substantial that it 

rendered him not qualified. Id. at 184-85. 

69. 243 F.3d 1012 (7th Cir. 2001). 

70. Id. at 1018. See also EEOC v. Woodbridge, 263 F.3d 812 (8th Cir. 2001). 

71. 194 F. 3d 1084 (10th Cir. 1999). 

The Americans with 

Disabilities Act Policy Brief 

20 Series: Righting the ADA 
72. Id. at 1085-86. 

73. Id. at 1089. 

74. 274 F.3d 740 (2nd Cir. 2001). 

75. Id. at 749. 

76. Id. at 749-50. 

77. See, e.g., Cooper v. Olin Corp., 246 F.3d 1083 (8th Cir. 2001) (locomotive engineer with 

chronic depression, prohibited from operating locomotive engine after return from depressive 

episode despite clearance to return to work by treating physician, not regarded as substantially 

limited in working); Steele v. Thiokol Corp., 241 F.3d 1248 (10th Cir. 2001) (rocket test 

technician with obsessive compulsive disorder (OCD) not regarded as disabled, despite 

employer's awareness of technician's OCD, the medicines he was taking, and supervisor's 

concerns regarding technician's mood swings); Krocka v. City of Chicago, 203 F.3d 504 (7th Cir. 

2000) (police officer with depression, which was treated successfully with Prozac, not regarded 

as disabled, despite the fact that, because he was taking Prozac, police officer was required to 

participate in Police Department's "Personnel Concerns Program," which required frequent 

monitoring by Department officials and routine medical evaluations, including blood draws); 

Doyal v. Oklahoma Heart, Inc., 213 F.3d 492 (10th Cir. 2000) (individual with severe depression 

and anxiety, whom her managers described as "incapacitated" and who was fired due to her 

inability to make decisions and her lapses in memory and judgment, not regarded as substantially 

limited in any major life activity); Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000) (typesetter with 

seizure disorder controlled by medication, type 2 diabetes, depression, mitral valve prolapse, 

high blood pressure, and who had had a brain tumor removed, neither substantially limited nor 

regarded as substantially limited in working, despite the fact supervisor contacted company's 

disability management personnel regarding typesetters' excessive medically-related absences, 

and despite the fact that typesetter was reassigned to a lower level position); Kellogg v. Union 

Pac. R.R. Co., 233 F.3d 1083 (8th Cir. 2000) (railroad manager with major depression and 

anxiety, whose employer refused to allow him to return to work under maximum 40 hour work 

week restriction, not regarded as substantially limited in working); Stumbo v. Dyncorp 

Technology Services, Inc., 130 F. Supp. 2d 771 (W.D.Va. 2001); aff'd sub nom., Stumbo v. 

Dyncorp Procurement Systems, Inc., 17 Fed. Appx. 202 (4th Cir. 2001); cert. denied, 122 S. Ct. 

1302 (2002) (security officer with fully corrected hypertension, denied job because reviewing 

physician noted in application file, "overweight smoker on hypertensive meds, wouldn't 

recommend for strenuous work," not regarded as substantially limited in working); Fultz v. City 

of Salem, 2002 WL 31051577 at *2 (9th Cir. 2002) (police officer who suffered a work-related 

injury to his left ring finger and who was fired as a result only regarded as having impaired left 

finger, not regarded as disabled); EEOC v. J.B. Hunt Transp., 128 F. Supp. 2d 117 (N.D.N.Y. 

2001) (truckload motor carrier did not discriminate against class of applicants that it did not hire 

because it learned (after it had made them a conditional offer of employment) that they were 

The Americans with 

Disabilities Act Policy Brief 

21 Series: Righting the ADA 
taking medications that appeared on a list that the company used to screen out applicants; 

plaintiffs had merely presented evidence that they were taking these medications, not that the 

employer regarded them as substantially limited in any major life activity or that they were 

actually substantially limited in a major life activity); Arnold v. City of Appleton, 97 F. Supp. 2d 

937 (E.D.Wis. 2000) (applicant for firefighter position, whose conditional offer of employment 

was revoked because he had epilepsy, not protected by the ADA; "the perceived inability to 

perform one job is not sufficient to establish that the plaintiff is substantially limited in the major 

life activity of working"); Piascyk v. City of New Haven, 64 F. Supp.2d 19 (D.Conn. 1999) 

(patrol officer with multiple injuries from car accident, who was denied promotion to 

superintendent position, not regarded as substantially limited, despite employer's receipt of 

employee's doctor reports, employer's express reference to officer as being injured, and officer's 

assignment to "light duty"). 

78. In Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002) (decided under Arkansas 

Civil Rights Act applying ADA standards), for example, the Eighth Circuit found that the 

plaintiff had successfully met his burden of proof as to the various elements of his claim. He had 

provided satisfactory evidence of his impairment: "Duty presented evidence at trial to illustrate 

the nature, severity, duration and impact of his impairment, including (1) symptoms of chilling 

occurring several times a week and lasting approximately forty-five minutes, (2) chronic neck 

pain present approximately ninety percent of the time, (3) weakness, (4) numbness in his groin 

and hands, (5) upper arm pain, and (6) headaches.” Id. at 491. He met his burden of showing that 

his employer regarded him as unable to perform a class or a broad range of jobs: "At trial, Duty 

presented evidence to demonstrate that NAP regarded him as significantly restricted in the major 

life activity of working, including (1) evidence of his lifting restriction which disqualified him 

from the type of work in which he is trained, (2) evidence of his lack of education, (3) evidence 

of his relatively advanced age, and (4) the vocational consultant's affidavit, which found him to 

be disqualified from the available jobs in his working area based on his disability.” Id. at 492. He 

was also able to demonstrate that he was qualified for the position he had been terminated from: 

"At trial, Duty submitted evidence to demonstrate that he was able to perform the essential 

functions of the maintenance mechanic job, including (1) his own testimony that he was capable 

of lifting 100 to 150 pounds occasionally, fifty to seventy-five pounds regularly and fifty pounds 

comfortably; (2) his testimony that heavier lifting was not an essential function of the job, 

because he had done such lifting only four or five times in his eighteen years on the job; (3) 

evidence that a variety of lifting devices were available to do any necessary heavier lifting; (4) 

evidence regarding NAP's available positions of rebuilder, sizing operator, ball mill operator, 

STS operator, and material handler, all of which he could have performed with his restrictions; 

(5) evidence of other employees hired to perform jobs he was capable of doing; (6) evidence that 

the "no-rehire" *493 policy was not the reason he was not given another position; and (7) 

evidence that other employees had returned to work when they were less than 100 percent 

capable of performing their essential job functions. Id. at 492-93. Accordingly, the Eighth 

Circuit affirmed a jury verdict in the amount of $305,000 in the plaintiff's favor, and the district 

court's award to the plaintiff of attorney's fees and costs totaling $54,673.05. 

The Americans with 

Disabilities Act Policy Brief 

22 Series: Righting the ADA 
The Americans with 

Disabilities Act Policy Brief 

23 Series: Righting the ADA