No. 00-1089 

IN THE 

TOYOTA MOTOR MANUFACTURING, 

KENTUCKY, INC., 

Petitioner, 

v. 

ELLA WILLIAMS, 

Respondent. 

On Writ of Certiorari to the 

United States Court of Appeals for the Sixth Circuit

BRIEF OF THE NATIONAL COUNCIL ON 

DISABILITY AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENT

NANCY L. PERKINS ARLENE MAYERSON* 

ARNOLD & PORTER DISABILITY RIGHTS 

555 Twelfth Street, N.W. EDUCATION AND 

Washington, D.C. 20004 DEFENSE FUND 

(202) 942-5065 2212 Sixth Street 

Berkeley, CA 94710 

(510) 644-2555 

*Counsel Of Record 

Counsel for Amicus Curiae 
- i -

TABLE OF CONTENTS 

Page 

INTEREST OF AMICUS CURIAE........................................ 1 

SUMMARY OF ARGUMENT ............................................. 2 

I. THE INTERPRETATION OF “SUBSTANTIAL

LIMITATION” URGED BY TOYOTA RUNS 

COUNTER TO THE PURPOSES OF THE ADA ....... 5 

A. Petitioner’s “Rigorous Threshold” Test Is

Without Statutory or Other Foundation. .............. 7 

B. Limiting Coverage to the Group That 

Petitioner Characterizes as the “Truly

Disabled” Would Defeat the Core Goals of 

the ADA. ............................................................ 12 

C. Congress Chose Not To Limit Coverage

Under the ADA Based on Speculation 

About Costs........................................................ 17 

II. AN IMPROPER INTERPRETATION OF THE 

“SINGLE JOB” EXCEPTION EXCLUDES 

FROM ADA PROTECTION MANY WHOM 

CONGRESS INTENDED TO COVER...................... 21 

III. THE DISTRICT COURT MISAPPLIED THE 

STANDARDS FOR SUMMARY JUDGMENT........ 26 
- ii -

TABLE OF AUTHORITIES 

Page(s) 

Cases: 

Albertson’s, Inc. v. Kirkingburg, 

527 U.S. 555 (1999)...................................................5 

E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 

(D. Haw. 1980).........................................................24 

Fitzpatrick v. City of Atlanta, 2 F.3d 1112 

(11th Cir. 1993)........................................................21 

Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986)...................25 

Jasany v. United States Postal Service, 

755 F.2d 1244 (6th Cir. 1985)..................................25 

Katz v. City Metal Co., Inc., 87 F.3d 26 

(1st Cir. 1996) ..........................................................27 

Leslie v. St. Vincent New Hope, Inc., 

916 F. Supp. 879 (S.D. Ind. 1996) ...........................21 

Mullins v. Crowell, 228 F.3d 1305 (11th Cir. 2000)............27

Murphy v. UPS, 527 U.S. 516 (1999) ........................5, 25, 26 

Reeves v. Sanderson Plumbing Products, 

Inc., 530 U.S. 133 (2000).........................................29 

Scharff v. Frank, 791 F. Supp. 182 

(S.D. Ohio 1991)......................................................21 

School Board of Nassau County v. Arline, 

480 U.S. 273 (1987)...........................................13, 19 

Schweiker v. Chilicky, 487 U.S. 412 (1988) ........................12 
- iii -

Sutton v. United Airlines, Inc., 

527 U.S. 471 (1999)..........................................passim 

Webb v. Garelick Manufacturing Co., 

94 F.3d 484 (8th Cir. 1996)......................................27 

Statutes: 

Americans with Disabilities Act, 42 U.S.C. 

§ 12101 et seq ...................................................passim 

42 U.S.C. § 12102(2)(A) ................................................3 

42 U.S.C. § 12102(2)(B) & (C)..................................3, 7 

42 U.S.C. § 12112(b)(5)(A)..........................................17 

42 U.S.C. § 12201(a)......................................................8 

Rehabilitation Act of 1973, Section 504, 

29 U.S.C. § 794.................................................passim 

29 U.S.C. § 781......................................................................1 

42 U.S.C. § 1382c(a)(3)(A) .................................................14 

Regulations: 

7 C.F.R. § 15b.3(k) ................................................................8 

28 C.F.R. § 42.540(k)(2)(ii)...................................................8 

29 C.F.R. pt. 1630, App. ................................................24, 26 

29 C.F.R. § 1630.2(j)(1)(i)...............................................4, 10 

29 C.F.R. § 1630.2(j)(1)(ii)..........................................4, 8, 10 
- iv -

29 C.F.R. § 1630.2(j)(2).......................................................29 

29 C.F.R. § 1630.2(j)(3)(i).............................................22, 28 

29 C.F.R. § 1630.2(j)(3)(ii)..................................................29 

32 C.F.R. § 56.3(c)(2) ............................................................8 

Rules: 

Fed. R. Civ. P. 56(c).............................................................30 

Legislative Materials: 

135 Cong. Rec. S10712 (daily ed. Sept. 7, 1989) ................16 

135 Cong. Rec. S10793 (daily ed. Sept. 7, 1989) ................17 

135 Cong. Rec. S10772 (daily ed. Sept. 7, 1989) ................19 

135 Cong. Rec. S10790 (daily ed. Sept. 7, 1989).....................1 

135 Cong. Rec. S10791 (daily ed. Sept. 7, 1989) ..................6 

136 Cong. Rec. E1774 .........................................................19 

136 Cong. Rec. E1914 .........................................................20 

136 Cong. Rec. H2315 (daily ed. May 15, 1990) ................19 

136 Cong. Rec. H2621 (daily ed. May 22, 1990) ................19 

136 Cong. Rec. H4613 (daily ed. July 12, 1990).................19 

136 Cong. Rec. S9695 (daily ed. July 13, 1990)..................16 

H.R. 4498, 100th Cong., 134 Cong. Rec. 9599-9600 ............2 
- v -

H.R. Rep. No. 101-485 (1990)......................................passim 

S. 2345, 100th Cong., 134 Cong. Rec. 9379-82 

(1988).........................................................................2 

S. Rep. No. 101-116 (1989) ..........................................passim 

Americans with Disabilities Act of 1989: Hearings on 

H.R. 2273 Before the Subcomm. on Civil and 

Constitutional Rights of the House Comm. on 

the Judiciary, 101st Cong. 89-90 (1989) .................19 

Miscellaneous: 

42 Fed. Reg. 22,676, 22,685 (1977).....................................13 

56 Fed. Reg. 35,726, 35,728 (1991).....................................29 

Robert L. Burgdorf Jr., “Substantially Limited” 

Protection from Disability Discrimination: 

The Special Treatment Model and 

Misconstructions of the Definition of 

Disability, 42 Vill. L. Rev. 409 (1997) ..............21, 28 

Robert L. Burgdorf Jr., Disability Discrimination 

in Employment Law 137 (1995) ..............................13 

Matthew Diller, Entitlement and Exclusion: The 

Role of Disability in the Social Welfare 

System, 44 UCLA L. Rev. 361 (1996) .....................14 

Louis Harris & Assocs., The N.O.D./Harris 

Survey on Employment of People with 

Disabilities 33 (1995)...............................................18 

Arlene B. Mayerson, Restoring Regard for the “Regarded 

as” Prong: Giving Effect to Congressional 

Intent, 42 Vill. L. Rev. 587 (1997)...........................21 
- vi -

National Council on the Handicapped, On the 

Threshold of Independence 27 (1988)........................1 

National Council on the Handicapped, Toward 

Independence 18 (1986).............................................1 

Deborah Stone, The Disabled State 

(Philadelphia: Temple University Press, 

1984) ........................................................................14 

Jess Williams, Don’t Fix Me I’m Not Broken, 

Stephenville Empire-Tribune, Jan. 1989..................15 
INTEREST OF AMICUS CURIAE 

The National Council on Disability (“NCD”) submits 

this brief amicus curiae based on its unique perspective on 

and experience with disability law and policy.

1 NCD 

(formerly the National Council on the Handicapped) is an 

independent federal agency composed of 15 members 

appointed by the President and confirmed by the Senate. 

Pursuant to its statutory mandate, NCD is charged with 

reviewing federal laws, regulations, programs, and policies 

affecting people with disabilities, and making 

recommendations to the President, the Congress, and other 

federal officials and entities regarding ways to promote equal 

opportunity, economic self-sufficiency, and inclusion and 

integration into all aspects of society for Americans with 

disabilities. 29 U.S.C. § 781. 

As this Court has recognized, the statute at issue in 

this case, the Americans with Disabilities Act, 42 U.S.C. 

§ 12101 et seq. (“ADA”), originated from a proposal of 

NCD.2 NCD first proposed the concept of the ADA in 1986. 

See National Council on the Handicapped, Toward 

Independence 18-21 (1986). In 1988, the NCD developed 

the original ADA bill that was introduced in the 100th 

Congress. See National Council on the Handicapped, On the 

1 This brief was not authored, in whole or in part, by counsel for 

either party. No person or entity, other than the amicus curiae, its 

members and counsel, contributed monetarily to the preparation or 

submission of the brief. The parties consented to the filing of the 

brief and copies of their letters of consent have been lodged with 

the Clerk of the Court. 

2 See Sutton v. United Airlines, 527 U.S. 471, 484-85 (1999). See 

also 135 Cong. Rec. S10790 (daily ed. Sept. 7, 1989) (“The bill 

originated with an initiative of the National Council on Disability”) 

(statement of Sen. Dole). 
- 2 -

Threshold of Independence 27-39 (1988); S. 2345, 100th 

Cong., 134 Cong. Rec. 9379-82 (1988); H.R. 4498, 100th 

Cong., 134 Cong. Rec. 9599-9600 (statement of Rep. 

Coelho). Congress relied on and acknowledged the 

influence of NCD and its reports during congressional 

consideration and passage of the ADA. 

Under its current statutory mandate, NCD is 

responsible for gathering information about the 

implementation, effectiveness, and impact of the ADA. 

NCD is thus intensely interested in ensuring that the ADA is 

interpreted and implemented in a manner consistent with the 

purposes for which it was proposed. NCD is also uniquely 

qualified to provide the Court with information about the 

background and framing of the ADA, implementation of the 

statute, and other information concerning issues affecting 

persons with disabilities. NCD is particularly concerned 

with and informed about the issue before the Court in this 

case, which is a threshold issue in all ADA cases: who is 

“disabled” and therefore protected by the ADA. 

SUMMARY OF ARGUMENT 

This case involves the proper interpretation of the 

definition of “disability” in the ADA, a threshold 

determinant of who will receive the protections the ADA 

provides. The specific question presented, whether “an 

impairment precluding an individual from performing only a 

limited number of tasks associated with a specific job 

qualifies as a disability,” Petitioner’s Brief (“Pet. Br.”) at (i), 

may appear relatively narrow. As argued by Petitioner, 

however, the issue is in fact much broader: Petitioner is 

actually urging a radical rewriting of the test for identifying a 

“substantial limitation” – and thereby a “disability” – under 

the ADA. Petitioner’s proposed test, if adopted by the 

courts, would prevent many individuals whom Congress 

intended the ADA to cover from receiving its protection, 
- 3 -

including the provision of reasonable accommodations that 

they may need to secure and/or maintain employment. 

In enacting the ADA, Congress recognized that 

individuals with a variety of disabilities were outside the 

economic and social mainstream of our society because of 

antiquated attitudes and the failure of employers and others 

to make modifications and accommodations to permit 

participation. Congress was particularly concerned about the 

extreme levels of unemployment faced by people with 

disabilities and adopted Title I of the ADA as a tool to 

encourage workplace participation. As part of the general 

ban on discriminatory policies and practices, Congress 

included in the ADA specific provisions requiring reasonable 

accommodation, which Congress found were “essential to 

accomplishing the critical goals of this legislation to allow 

individuals with disabilities to be part of the economic 

mainstream of our society.” S. Rep. No. 101-116, at 10 

(1989) [hereinafter “Senate Rep.”]; H.R. Rep. No. 101-485, 

pt. 2, at 34 (1990) [hereinafter “House Rep.”]. 

Congress recognized that exclusion takes place in a 

variety of ways to people with various types of disabilities. 

To address this problem broadly, Congress adopted an 

inclusive, three-prong definition of “disability,” tracking the 

definition of “handicap” in Section 504 of the Rehabilitation 

Act of 1973, 29 U.S.C. § 794 (“Section 504”). Under this 

definition, an individual is deemed disabled either if he or 

she has an impairment that “substantially limits” one or more 

major life activities, or if she or he has either a record of 

such an impairment or is regarded as having such an 

impairment. 42 U.S.C. § 12102(2)(A), (B) & (C). Under the 

Equal Employment Opportunity Commission (“EEOC”) 

regulations implementing the ADA, being “substantially 

limited” in a major life activity means being either “unable 

to perform a major life activity . . . or significantly restricted 

as to the condition, manner or duration under which [the] 
- 4 -

individual can perform a particular major life activity as 

compared to the condition, manner or duration under which 

the average person in the general population can perform that 

same major life activity.” 29 C.F.R. § 1630.2(j)(1)(i), (ii) 

(emphasis added). 

In this case, Petitioner attempts to erect a “rigorous 

threshold” for ADA coverage, Pet. Br. at 10, by devising its 

own test, without statutory or other foundation. According 

to Petitioner, “individuals claiming coverage under the ADA 

must demonstrate that they are severely restricted from using 

their hands to perform a broad range of basic functions 

needed to meet the essential demands of everyday life.” Pet. 

Br. at 12-13 (emphasis added). This test is at odds with the 

statute, its legislative history, and the implementing 

regulations. The crux of Petitioner’s argument reveals the 

extreme consequences of its position. Petitioner relies on the 

reasoning of the district court, which found Respondent’s 

claim that she was substantially limited in manual tasks to be 

“irretrievably contradicted by her continual insistence that 

she could perform the tasks in assembly and paint inspection 

without difficulty; positions requiring manual tasks.” Pet. 

Br. at 7, 9. Since Petitioner itself characterizes the jobs that 

Ms. Williams was performing as being “modified duty,” and 

the “easiest jobs” in the plant, Pet. Br. at 5, Petitioner is in 

essence arguing that a plaintiff must be totally unable to do 

even modified tasks in order to be “substantially limited” in 

manual tasks and/or working. 

Petitioner’s Draconian position exemplifies its 

erroneous view that Congress intended to extend ADA 

protection only to the “truly disabled” – persons who, 

according to Petitioner, are so severely restricted that they 

are unable to meet the essential demands of daily life. Pet. 

Br. at 12-13. Petitioner’s concept of the “truly disabled” 

reinforces the stereotypical view of disability that Congress 

sought to reverse in overwhelmingly passing the ADA. The 
- 5 -

notion of the “truly disabled” comes from the social welfare 

arena where the determination of “disability” is used to 

decide who should be excused from societal obligations, 

including work. The ADA embodies a very different notion 

of people with disabilities – individuals who have the talent, 

skills, abilities, and desire to participate actively in society 

but are precluded from doing so because of antiquated 

attitudes or the failure to provide reasonable 

accommodations. ADA plaintiffs are not asking to be 

excused from participation and receive monetary benefits. 

ADA plaintiffs, like Respondent herself, are those who 

would rather keep working than go on the welfare rolls. 

Using the tests set forth in the ADA implementing 

regulations and this Court’s decisions in Sutton v. United 

Airlines, Inc., 527 U.S. 471 (1999), Murphy v. UPS, 527 

U.S. 516 (1999), and Albertson’s, Inc. v. Kirkingburg, 527 

U.S. 555 (1999), instead of the harsh criteria concocted by 

Petitioner, a jury could properly find that Respondent is 

“disabled” within the meaning of the ADA because she is 

significantly restricted as to the condition, manner and 

duration of performing manual tasks as compared to the 

average person in the general population. Allowing her to 

proceed on her ADA claim simply permits her to have her 

day in court to determine whether she could have been 

reasonably accommodated in order to keep her job. 

I. THE INTERPRETATION OF “SUBSTANTIAL 

LIMITATION” URGED BY TOYOTA RUNS 

COUNTER TO THE PURPOSES OF THE ADA. 

This case involves an employee who has significant 

restrictions in manual activities – restrictions that, contrary to 

Petitioner’s portrayal, limit her ability to perform manual 

tasks far beyond the “single,” “particular” job to which 

Petitioner assigned her. This is an employee who was 

working and could have continued to do so had Petitioner 
- 6 -

not reassigned her to a job that she could not perform. This 

is precisely the type of individual who Congress found 

would benefit from the employment provisions of the ADA. 

As emphasized in the legislative history of the ADA, 

“[r]easonable accommodation is a key requirement of the 

Rehabilitation Act and of this Act.” House Rep., pt. 2, at 33; 

Senate Rep. at 32. After reviewing governmental and private 

studies that revealed “staggering levels of unemployment” 

among people with disabilities,3

 Congress concluded that 

“the provision of all types of reasonable accommodations is 

essential to accomplishing the critical goal[s] of this 

legislation – to allow individuals with disabilities to be part 

of the economic mainstream of our society.” Senate Rep. at 

10; House Rep., pt. 2, at 34.4 As demonstrated below, the 

miserly reading of “disability” suggested by Petitioner would 

prevent many individuals who Congress intended to be 

protected by the ADA from receiving the reasonable 

3 Senate Rep. at 9; see also House Rep., pt. 2, at 32 (citing 

Louis Harris & Assocs., The ICD Survey of Disabled Americans: 

Bringing the Disabled into the Mainstream 50 (1986) (finding that 

two-thirds of working age disabled Americans were unemployed 

even though the majority (66%) of those individuals wanted to 

work) and U.S. Dept. of Commerce, Bureau of the Census, Labor 

Force Status and Other Characteristics of Persons with 

Disabilities 2 (1989) (finding that twice as many adults with 

disabilities had household incomes of $15,000 or less compared to 

adults without disabilities)). 

4 “[T]his bill will help our country use an immense amount of 

talent, intelligence, and other human resources which heretofore 

have been underestimated, underdeveloped, and underutilized.” 

136 Cong. Rec. H2433 (daily ed. May 17, 1990) (statement of 

Rep. Luken). “Our economy can no longer afford not to enlist the 

unique abilities and talents of people with disabilities.” 135 Cong. 

Rec. S10791 (daily ed. Sept. 7, 1989) (statement of Sen. Riegle). 
- 7 -

accommodation they need to secure and/or maintain 

employment. 

A. Petitioner’s “Rigorous Threshold” Test Is 

Without Statutory or Other Foundation. 

The critical issue presented by this case, which 

affects each and every ADA case, is how properly to 

determine whether an individual is “substantially limited in a 

major life activity.”5 Petitioner proposes a test for the 

“substantially limited” determination that would preclude an 

affirmative finding for virtually any individual who is able to 

live an independent, productive life. But as the ADA’s text, 

implementing regulations and legislative history reveal, such 

an individual is precisely who Congress intended the ADA to 

benefit.6 

5 NCD does not endorse the Sixth Circuit’s opinion to the extent 

it is read to limit the manual tasks inquiry to a focus on “jobrelated” tasks. The proper approach is to consider all restrictions, 

including those both at home and at work, in determining whether 

an individual is substantially limited in manual tasks. This is 

especially true in a case like this, where Respondent’s activities in 

one sphere affect her activities in others. 

6 Petitioner’s arguments based on the congressional finding of 

43,000,000 people with disabilities are misplaced. As the Court 

noted in Sutton, the ADA finding referring to this number 

originated in a corresponding finding in a report by the NCD. 

Sutton, 527 U.S. at 484-85. Neither NCD nor Congress intended 

that such a figure represent the number of persons to be protected 

by the ADA; rather, the figure was presented as a rough estimate 

of the persons then having actual disabilities. The ADA’s threeprong definition of “disability,” in contrast, covers not only those 

with actual disabilities but also those who have a “record of” or 

are “regarded as having” a substantial impairment. 42 U.S.C. 

§ 12102(2)(B)-(C)). The number of persons protected under the 

(footnote continued on next page) 
- 8 -

The EEOC regulations implementing Title I of the 

ADA define a “substantial limitation” as a significant 

restriction in the “condition, manner or duration under which 

the average person ... can perform that same major life 

activity.” 29 C.F.R. § 1630.2(j)(1)(ii). Manual tasks are 

explicitly recognized as a major life activity.

7 Id. Petitioner, 

while professing loyalty to the EEOC regulations and 

accompanying guidance, in fact makes up its own test for 

determining a substantial limitation in manual tasks: 

“individuals claiming coverage under the ADA must 

demonstrate that they are severely restricted from using their 

hands to perform a broad range of basic functions needed to 

meet the essential demands of everyday life.” Pet. Br. 

at 12-33 (emphasis added). 

Petitioner’s proposed heightened requirements are 

built on a faulty premise. First, the EEOC regulations define 

a person as “substantially limited” if he or she is 

(footnote continued from previous page) 

three-prong definition is necessarily indeterminant: it includes all 

those who are subjected to discrimination because they are 

perceived or treated as having a disability, whether or not they 

actually do. 

In any event, in discussing the 43,000,000 figure, this Court in 

Sutton concluded that Congress favored a functional approach to 

determining who is disabled. See Sutton, 527 U.S. at 485-86. 

Such a functional approach is fully consistent with the analysis 

presented by NCD here. 

The inclusion of manual tasks as a major life activity is 

codified at 42 U.S.C. § 12201(a), which incorporates by reference 

the standards applied under the various federal agencies’ 

regulations implementing Section 504, which uniformly list 

“manual tasks” as a major life activity. See, e.g., 7 C.F.R. 

§ 15b.3(k) (Dep’t of Agric.); 32 C.F.R. § 56.3(c)(2) (Dep’t of 

Defense); 28 C.F.R. § 42.540(k)(2)(ii) (Dep’t of Justice). 

7 
- 9 -

“significantly restricted” – not, as Petitioner would have it, 

only if he or she is “severely restricted.” Second, Petitioner 

refers to “basic functions,” a term it uses interchangeably 

with “basic activities” and “basic tasks,” apparently in 

reliance on a portion of the EEOC guidance explaining that 

the “major life activities” listed in the guidance are not 

exhaustive, and that other “basic activities” may also 

constitute major life activities.8 In this case, however, there 

is no need to decide if the life activity at issue is “basic,” 

because “manual tasks” is a specifically listed “major life 

activity.” Once a major life activity is identified, the inquiry 

turns to restrictions in the manner, condition and duration 

under which the activity is performed in comparison to the 

average person. No further consideration of whether the 

relevant activity is “basic” is appropriate. 

Petitioner bases the crux of its argument on the fact 

that Respondent is able to perform some manual activity. 

Petitioner adopts the reasoning of the district court that 

Ms. William’s claim (that she was substantially limited in 

manual tasks) was “ ‘irretrievably contradicted by her 

continual insistence that she could perform the tasks in 

assembly and paint inspection without difficulty; positions 

requiring manual tasks.’ ” Pet. Br. at 7 (quoting Pet. App. 

36a). Since Petitioner itself characterizes the jobs that 

Ms. Williams was performing as being “modified duty,” and 

the “easiest jobs” in the plant, Pet. Br. at 5 (citing Pet. 

App. 25a), Petitioner is in essence arguing that a plaintiff 

must be totally unable to do even modified tasks in order to 

be “significantly restricted” in manual tasks and/or working. 

With respect to Ms. William’s particular impairment, 

Petitioner asserts that a person with CTS could be 

8 See Pet. Br. at 3 (citing 29 C.F.R. § 1630.2(i), (j)(1)(ii) & 

Appendix). 
- 10 -

substantially limited in manual tasks only if the CTS were 

“so severe that it precludes an individual from performing a 

broad range of basic manual functions that the average 

person typically performs without difficulty.” Pet. Br. at 18, 

n.6 (emphasis added). While this test reflects one way that a 

plaintiff may show a substantial limitation, see 29 C.F.R. 

§ 1630.2(j)(1)(i) (unable to perform), it totally ignores the 

alternative basis for making such a showing that is relevant 

here – that the plaintiff, while not precluded, is significantly 

restricted from performing manual tasks. See id. 

§ 1630.2(j)(1)(ii) (significantly restricted). 

Such restriction is plainly present in this case. The 

evidence in the record demonstrates substantial restrictions 

in the condition (pain),9 manner (numerous restrictions on 

activities),

10 and duration (time restrictions)11 under which 

Ms. Williams can perform manual tasks as compared to the 

9 Ms. Williams’ conditions are inherently painful. As noted in 

the William J. Weikel, Ph.D., Vocational Report, her conditions 

include, among others: bilateral tenderness, peritendinitis 

inflammation, myofascial pain, and rotator cuff tendinitis. (J.A. 

37.) 

Ms. Williams experiences pain and discomfort daily. See J.A. 

35. 

10 Since 1992, Ms. Williams’ manual activity involving 

repetitive activity, lifting, and overhead work has been 

permanently restricted. J.A. 43. Toyota’s doctors added to these 

permanent restrictions the additional restrictions: “no above chest 

level, extended reach, or repetitive rotary or lateral movements of 

head/neck.” J.A. 43-44. 

11 See, e.g., J.A. 35 (“Sitting for a long period of time and not 

moving and stirring, it hurts”); J.A. 36 (After driving 

approximately 60-80 miles, “I’m feeling the nerves tingling in my 

shoulder, and my neck tightens up, and I get into quite a bit of 

pain.”). 
- 11 -

condition, manner and duration under which the average 

person in the general population can perform such tasks.12 

Petitioner correctly points out that Congress did not 

intend to cover “[a] person with a minor trivial impairment.” 

Pet. Br. at 25. What Petitioner fails to acknowledge is the 

type of impairment Congress considered to constitute a 

“trivial impairment”: for example, “a simple infected 

finger.” Senate Rep. at 23; House Rep., pt. 2, at 52. In fact, 

Congress used this example to demonstrate that substantial 

meant nontrivial. It is callous at best to compare 

Respondent’s significant medical conditions and functional 

restrictions to the condition of someone suffering from a 

simple infected finger. It is also plainly misguided to 

compare Ms. Williams to someone who cannot walk 

11 miles without pain, as Petitioner does with reference to an 

example in the EEOC guidance. See Pet. Br. at 26 (citing 

House Rep., pt. 2, at 52; Senate Rep. at 23). The point of the 

EEOC example is to demonstrate that, since most people 

would experience similar pain at the eleventh mile, the 

walker is no different that any member of the general public. 

There is no plausible basis for Petitioner’s suggestion that a 

person with numerous physical impairments, and numerous 

physical restrictions, is the same as any other member of the 

general public. 

12 Respondent’s manual tasks claim is not limited to working, 

but rather is based on evidence in the record that establishes her 

substantial restrictions at home and work. As the Sixth Circuit 

explicitly recognized: “Here, the impairments of limbs are 

sufficiently severe to be like deformed limbs and such activities 

affect manual tasks associated with working, as well as manual 

tasks associated with recreation, household chores and living 

generally.” Pet. App. 6a. 
- 12 -

B. Limiting Coverage to the Group That 

Petitioner Characterizes as the “Truly 

Disabled” Would Defeat the Core Goals 

of the ADA. 

Petitioner attempts to justify its contention that, in 

order to be deemed “disabled” under the ADA, a person 

must be severely restricted in performing the essential 

demands of daily life, Pet. Br. at 12, 13, by invoking a 

misguided notion that the ADA was meant to “extend only to 

those who are truly disabled.” Pet. Br. at 10, 11, 18, 29-33.13 

According to Petitioner, Respondent is not disabled because 

she can “brush her teeth, she can do the laundry, she can pick 

up items from the floor, . . . she can drive a car” and she was 

able to do her old job (which Petitioner admits was the 

easiest job in the plant). Pet. Br. at 18, 5. Petitioner asserts 

that this is “simply not the case for the person who has 

13 The exact origin of the phrase “truly disabled” is unclear. 

However, it has been used in the Social Security income context to 

mean individuals who are unable to support themselves. In 

Schweiker v. Chilicky, 487 U.S. 412 (1988), Justice O’Conner’s 

majority opinion cited portions of the Congressional Record in 

which Senator Moynihan referred to the way in which the Social 

Security Administration “has tried to reduce program cost by 

terminating the benefits of hundreds of thousands of truly disabled 

Americans,” and Congressman Rostenkowski spoke of “massive 

numbers of beneficiaries who have lost their benefits over the last 

3 years even though they are truly disabled and unable to work.” 

Id. at 416 (citing Congressional Record). To this point, then, the 

United States Supreme Court has only recognized the phrase 

“truly disabled” in reference to traditional social welfare 

legislation in which the meaning of disability serves a pure 

gatekeeper function with regard to monetary benefits and other 

types of compensation. The phrase was used during the ADA 

legislative process only by members of Congress who opposed the 

current definition. See infra note 22. 
- 13 -

missing or deformed limbs,”14 an example of Petitioner’s 

“truly disabled” and legitimate ADA plaintiff. Pet. Br. at 18. 

Petitioner’s notion of the “truly disabled” belies the 

ADA’s text implementing regulations and legislative history. 

If Congress had been interested only in the mythic “truly 

disabled” person, it would not have adopted a definition of 

disability that had been given broad agency and court 

interpretations under Section 504. In 1977, the Department 

of Health, Education and Welfare (“HEW”), which had the 

responsibility to issue Section 504 regulations, explicitly 

rejected a plea to limit Section 504 coverage to “traditional” 

disabilities. HEW relied on the breadth of the statutory 

language and concluded that it could not be reconciled with 

an interpretation that would limit coverage to “persons who 

have those severe, permanent, or progressive conditions that 

are most commonly regarded as handicaps.”15 As this Court 

stated in School Board of Nassau County v. Arline, 480 U.S. 

273, 280 n.5 (1987), the definition is broad but only those 

who are qualified are eligible for relief. 

Petitioner’s narrow concept of disability invokes an 

earlier era that Congress clearly meant to reverse in enacting 

14 Pet. App. 4a (citing the Sixth Circuit’s opinion below). 

15 42 Fed. Reg. 22,676, 22,685 (1977). The agency did not limit 

definition to traditional disabilities because of the “difficulty of 

ensuring the comprehensiveness of any such list,” particularly in 

light of the fact that new disorders may develop in the future. 

School Board of Nassau County v. Arline, 480 U.S. 273, 280 n.5 

(1987) (citing 45 C.F.R. pt. 84, App. A, at 310 (1985)). See also 

Senate Rep. at 22 (same). Consistent with the HEW approach and 

Arline, the courts have recognized a wide variety of disabilities for 

purposes of Section 504 protection. See Robert L. Burgdorf Jr., 

Disability Discrimination in Employment Law 137-40 (1995) 

(citing cases). 
- 14 -

the ADA. Petitioner’s notion of a “truly disabled” person 

comes from an era where the “disability” label excused 

people from societal obligations.16 The ADA envisions a 

very different notion of persons with disabilities: people 

who have the talent, skills, abilities, and desire to participate, 

but are precluded from doing so because of antiquated 

attitudes or the failure to provide reasonable 

accommodations.17 ADA plaintiffs are not asking to be 

excused from participation and receive monetary benefits. 

ADA plaintiffs are those who would rather keep working 

than go on the welfare rolls.18 The phrase “truly disabled” 

harks back to an era when social welfare was the prominent 

response to disability. In enacting the ADA, Congress 

expressly recognized that this paternalistic, albeit wellintentioned, notion of disability caused isolation and 

16 See Matthew Diller, Entitlement and Exclusion: The Role of 

Disability in the Social Welfare System, 44 UCLA L. Rev. 361 

(1996). See also Deborah Stone, The Disabled State 

(Philadelphia: Temple University Press, 1984). Unlike the ADA 

definition, the disability definition under the Social Security 

statute requires an inability to work. See 42 U.S.C. 

§ 1382c(a)(3)(A). 

17 As Congress recognized, among the major reasons that people 

with disabilities are discriminated against in the workplace are 

“standards and criteria that have the effect of denying 

opportunities; failure to provide or make available reasonable 

accommodations.” Senate Rep. at 9 (1989). 

18 Congress was persuaded that the ADA employment provisions 

would result in “more persons with disabilities working, in 

increased earnings, in less dependence on the Social Security 

System for financial support, in increased spending on consumer 

goods, and increased tax revenues.” Senate Rep. at 17 (quoting 

Att’y Gen. Thornburg). As Congress noted, a 1987 Harris poll 

had found that 82% of people with disabilities said they would 

give up benefits in favor of a full-time job. See id. at 9. 
- 15 -

exclusion from the mainstream of society to an extent utterly 

incompatible with the equal opportunity guaranteed by our 

nation’s civil rights laws. Congress sought through the ADA 

to reverse stereotypical views of people with disabilities as 

unable to function in and contribute to society. 

In referring to a person with visibly “deformed” arms 

and hands as one who is “truly disabled,” Pet. Br. at 18, 

Petitioner simply assumes that, unlike Ms. Williams, such a 

person could never drive a car, do the laundry or perform 

personal hygiene activities.19 Yet such an individual can 

readily drive a modified vehicle, speak on a phone with a 

headset, and use various home appliances. The mere fact 

that such persons have invested in creating home 

environments that can accommodate their personal physical 

needs and enable them to perform “a broad range of basic 

functions” certainly does not mean that they will not 

encounter discrimination in the employment market, or that 

the ADA should not be applied to ensure that they can ask 

for reasonable accommodations such as modified keyboards 

or headphones in the workplace. 

By raising the specter of the “truly disabled,” 

Petitioner is attempting to resurrect society’s stereotypes 

about disability, suggesting that disabled people must be 

visibly and functionally unable to perform in certain specific, 

19 Petitioner’s assumptions are based on the types of stereotypes 

the ADA is designed specifically to address. Without denying the 

difficulties that such persons encounter in a world that assumes 

their inabilities, many persons with “missing or deformed limbs” 

live highly functional and independent lives. For example, Stacey 

Conner, born without arms, “dresses herself every morning with 

the help of a suction cup and a stick” and “mostly does everything 

anybody else does in her own way.” Jess Williams, Don’t Fix Me 

I’m Not Broken, Stephenville Empire-Tribune, Jan. 1989. 
- 16 -

socially expected ways before they are entitled to the 

protection of law. These are the very social stereotypes that 

subject persons with disabilities to discrimination in the first 

place. In opposition to this, the ADA and the EEOC 

regulations, consistent with Congress’ intent, are designed to 

protect persons with disabilities who are able to do many 

things, ordinary and extraordinary. 

Senator Dole, during the congressional debates on the 

ADA, expressed a vision of a future where people with 

disabilities would be able to fully participate in society: 

“Living independently and with dignity means opportunity to 

participate fully in every activity of daily life. . . . The ADA 

offers such opportunity to persons with disabilities.” 136 

Cong. Rec. S9695 (daily ed. July 13, 1990) (statement of 

Sen. Dole). It would be ironic indeed if this promise of the 

ADA were the death-knell to ADA coverage. 

Senator Harkin, a primary author and sponsor of the 

ADA, referred to the wide range of people with disabilities 

to be covered by the Act, including “an elderly grandmother 

with arthritis, but determined to fend for herself and live her 

retirement years in dignity.” 135 Cong. Rec. S10712 (daily 

ed. Sept. 7, 1989) (statement of Sen. Harkin). Would this 

individual be precluded from bringing an ADA claim if she 

still did some household chores and had a volunteer job at 

the library? 

The fundamental goal of the ADA to integrate people 

with disabilities in all aspects of economic and social life 

would be undermined if participation itself was evidence of 

no substantial limitation and therefore no disability. The 

ability to do some jobs and some household chores cannot 

strip away protection against discrimination, including the 

provision of reasonable accommodation, if the ADA is to be 
- 17 -

honored consistent with Congress’ view of people with 

disabilities as able, talented and skilled.20 

C. Congress Chose Not To Limit Coverage 

Under the ADA Based on Speculation 

About Costs. 

Petitioner asserts that extending the protective reach 

of the ADA to persons with limiting impairments who are 

“otherwise capable” of functioning in basic activities “will 

inexorably siphon off the resources employers can devote to 

assisting truly disabled persons.” Pet. Br. at 30. This 

purportedly altruistic suggestion not only is suspect as a 

matter of economics, but also ignores one of the fundamental 

decisions made by Congress in enacting the ADA. Defining 

“disability” narrowly in order to conserve resources to 

protect only the “truly disabled” was never advocated, and is 

not now endorsed, by NCD – the agency that originally 

proposed the ADA – or by any of the other disability rights 

organizations that urged the ADA’s adoption or have joined 

as amici in this case. As intended by these organizations and 

Congress, the ADA addresses the problem of limited 

employer resources not through the definition of “disability,” 

but rather by limiting the accommodations an employer must 

make for persons with disabilities to those that do not impose 

an “undue hardship” on the employer’s business. 42 U.S.C. 

§ 12112(b)(5)(A). 

Throughout the legislative process, Congress heard 

cost-based objections to the proposed reach of the ADA, 

20 See, e.g., 135 Cong. Rec. S10793 (daily ed. Sept. 7, 1989) 

(“Too many people forget that the disabled have many abilities as 

well as disabilities.”) (statement of Senator Biden). 
- 18 -

specifically in the context of the definition of disability.

21 

Remarkably, one opponent of the ADA phrased his 

objections in virtually identical terms as those used by 

Petitioner here. Representative Craig stated: 

One of my strongest objections to this bill is 

that it [ . . . would] siphon away the benefits 

and protection that should be reserved for 

the truly disabled. I am speaking here about 

the definition of a disability in terms of 

coverage under this act.22 

21 However, “[s]everal witnesses also explained that Title I of 

the ADA (employment discrimination) is modeled after 

regulations implementing the Rehabilitation Act of 1973 . . . and 

that compliance with these laws has been ‘no big deal.’ ” Senate 

Rep. at 10. In fact, findings with respect to compliance with the 

ADA belie the cost objectives voiced during the legislative 

process. See, e.g., Louis Harris & Assocs., The N.O.D./Harris 

Survey on Employment of People with Disabilities 33 (1995) 

(“During the debate about the ADA, much was made of the 

perception that the costs would be prohibitive. This is not the case 

for most employers.”) The 1995 Harris survey reported that 79% 

of employers said the inclusion of more people with disabilities 

into the workforce was a “boost to the nation.” Id. at 21. 

22 Representative Craig was particularly concerned about the 

ADA’s inclusion of persons with HIV within the definition of 

disability, as well as others whom he did not consider to be “truly 

disabled.” Representative Delay opposed the legislation on the 

ground that it “just about makes everyone disabled, whether you 

are truly disabled and show symptoms of disability.” 136 Cong. 

Rec. H2315 (daily ed. May 15, 1990). Representative Dannemeyer 

suggested limiting the ADA’s protection to “those who are 

disabled as a result of birth or accident. They are truly disabled 

people, and we should be passing Federal legislation to protect 

people in that unfortunate status.” 136 Cong. Rec. H4613 (daily 

ed. July 12, 1990). 
- 19 -

136 Cong. Rec. E1774 (emphasis added). Likewise, a 

witness for the National Federation of Independent 

Businesses urged that Congress provide an exclusive list of 

disabilities as a way of limiting the costs of 

accommodation.23 This and other suggested means of 

limiting the definition of “disability” for cost reasons were 

specifically rejected by Congress. As Representative Hoyer 

explained: 

Throughout the process on the ADA, we 

were often asked to substitute for this 

definition a list of selected disabilities that 

would be the only disabilities covered 

under the act. That approach was rejected 

by every committee. Instead, the act retains 

the flexibility definition that was first 

adopted in Section 504 of the 

Rehabilitation Act of 1973, that has been 

in effect for over 15 years, and that was 

recently explicated clearly by the Supreme 

Court in School Board of Nassau 

County v. Arline, 480 U.S. 273 (1987). 

136 Cong. Rec. E1914 (emphasis added). 

Ironically, following the suggestion of Petitioner to 

limit ADA coverage to those it characterizes as “truly 

23 Americans with Disabilities Act of 1989: Hearings on 

H.R. 2273 Before the Subcomm. on Civil and Constitutional Rights 

of the House Comm. on the Judiciary, 101st Cong. 89-90 (1989) 

(statement of John J. Motley III, National Federation of 

Independent Businesses). Certain members of Congress reiterated 

this proposal. See 136 Cong. Rec. H2621 (daily ed. May 22, 

1990) (statement of Rep. McCollum); 135 Cong. Rec. S10772 

(daily ed. Sept. 7, 1989) (statement of Sen. Armstrong). 
- 20 -

disabled” would preclude accommodations for persons with 

disabilities that employers can provide at minimal or no cost. 

As specifically stated in the legislative history: 

The legislation also specifies, as examples 

of reasonable accommodation, job 

restructuring, part-time or modified work 

schedules and reassignment to a vacant 

position. . . . Part-time or modified work 

schedules can be a no-cost way of 

accommodation. . . . 

Reasonable accommodation may also 

include reassignment to a vacant position. 

If an employee, because of disability, can 

no longer perform the essential functions 

of the job that she or he has held, a 

transfer to another vacant job for which 

the person is qualified may prevent the 

employee from being out of work and the 

employer from losing a valuable worker. 

Senate Rep. at 31-32. 

Ms. Williams is a quintessential example of a 

disabled person who may be accommodated in the 

workplace at minimal or no cost. In light of the “undue 

hardship” provision in the ADA, properly understanding the 

statute’s definition of “disability” to include impairments 

such as those of Ms. Williams plainly would not “siphon off” 

resources from those most deserving of ADA protection. 
- 21 -

II. AN IMPROPER INTERPRETATION OF THE 

“SINGLE JOB” EXCEPTION EXCLUDES 

FROM ADA PROTECTION MANY WHOM 

CONGRESS INTENDED TO COVER. 

This Court need not address the question whether 

Respondent is substantially limited in working in order to 

decide this case. However, in the event the Court does 

address the issue, Petitioner’s misstatement of the proper test 

for resolving that question warrants response, particularly in 

light of the disturbing trend in the lower courts to overapply 

the “single job” exception to a finding of a substantial 

limitation in working.

24 

24 Many courts have misapplied the “single job exception” to 

find that plaintiffs are not substantially limited in the major life 

activity of working, despite the fact that the plaintiff’s impairment 

would also impact the ability to perform jobs, in addition to the 

one at issue, requiring the same tasks. See, e.g., Arlene B. 

Mayerson, Restoring Regard for the “Regarded as” Prong: 

Giving Effect to Congressional Intent, 42 Vill. L. Rev. 587, 598 

n.47 (1997) (citing cases in which plaintiffs were found not to be 

disabled despite the fact that their impairments would limit the 

ability to perform many jobs); Robert L. Burgdorf 

Jr.,“Substantially Limited” Protection from Disability 

Discrimination: The Special Treatment Model and 

Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 

409, 540 (1997) (“The exclusion-from-one-job-is-not-enough 

formula has resulted in, or contributed to, the dismissal of ADA or 

section 504 of the Rehabilitation Act claims by plaintiffs with 

[various serious impairments].”). Not all courts have followed this 

trend. See, e.g., Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th 

Cir. 1993); Leslie v. St. Vincent New Hope, Inc., 916 F. Supp. 879 

(S.D. Ind. 1996); Scharff v. Frank, 791 F. Supp. 182 (S.D. Ohio 

1991). 
- 22 -

Under the EEOC standard, an ADA plaintiff is 

“substantially limited” in working if she can establish that 

she is significantly restricted in the ability to perform either 

(1) a class of jobs or (2) a broad range of jobs in various 

classes, as compared to the average person with comparable 

training, skills and abilities. 29 C.F.R. § 1630.2(j)(3)(i). In 

what has come to be known as the “single job” exception, 

the EEOC standard provides that “[t]he inability to perform a 

single, particular job does not constitute a substantial 

limitation in the major life activity of working.” Id.

25 

In this case, Respondent’s restrictions substantially 

limit her ability to do assembly line work, the work she has 

done virtually all of her life. Contrary to Petitioner’s 

25 NCD has historically criticized the EEOC’s “class of jobs” test 

and “single job” exception because of the possibility for their 

abuse. For example, courts have erroneously required plaintiffs to 

meet the criteria set forth in 29 C.F.R. § 1630.2(j)(3)(ii) in order to 

substantiate a claim under the third prong of the ADA’s 

“disability” definition, i.e., a claim based on being “regarded as” 

having a disability (as opposed to actually having a disability). As 

indicated by the ADA’s legislative history and this Court’s 

decision in Arline, 480 U.S. at 284, the proper focus with respect 

to a “regarded as” claim is on the allegedly discriminatory conduct 

of the employer, not any limitations of the plaintiff. 

[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. 

House Rep., pt. 3, at 30 (1990) (emphasis added). See also Senate 

Rep. at 24; House Rep., pt. 2, at 53. 
- 23 -

suggestion, the fact that Ms. Williams could do the “easiest 

job” in the Toyota plant where she worked, Pet. Br. at 5 

(citing Pet. App. 25a), cannot mean that Ms. Williams is not 

significantly restricted in a “class of jobs.” Ms. Williams is 

significantly restricted from performing the broad range of 

other jobs that, within the wide class of jobs making up 

“assembly line work,” involve the motions her impairment 

prevents her from performing. Petitioner relies on the 

district court’s reasoning that the ability to do a single, 

particular job within a class of jobs means that someone is 

not substantially limited in working. As discussed below, 

that reasoning turns the EEOC regulation and this Court’s 

decisions in Sutton and Murphy, in which the plaintiffs were 

able to do many other jobs within a class of jobs except one, 

on their heads. 

Far from advising that the ability to perform a single, 

particular job precludes a finding that a person is 

significantly restricted in working, the EEOC regulations 

simply explicate the “class of jobs” test by explaining that 

the inability to perform a single, particular job would not be 

a “substantial limitation” in working. 

The EEOC based the “single job” exception on 

express legislative history, which emphasizes the narrowness 

of the exception: 

A person who is limited in his or her 

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 
- 24 -

employer which is not generally used in 

the field in which the painter works. 

House Rep., pt. 2, at 29 (emphasis added). 

The EEOC also relied on cases decided under the 

Rehabilitation Act that illustrate that the distinction between 

a particular job and a class of jobs involves analyzing 

whether the tasks or circumstances of the job at issue are in 

some way unique. See 29 C.F.R. pt. 1630, App. (Section 

1630.2(j)). The case that initially established what has 

become known as the “single job exception” was E.E. Black, 

Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw. 1980). The 

applicant in E.E. Black was disqualified from all of the 

employer’s apprentice carpenter positions after a preemployment medical exam revealed that he had a congenital 

back abnormality, which the employer perceived would 

prevent him from doing the heavy lifting required of its 

apprentice carpenters. The court rejected the notion that the 

inability to perform a specific job necessarily constituted a 

substantial limitation in working because the job might be so 

unique that it would not affect the employee’s ability to work 

in his/her chosen field. The court gave the following 

examples, which emphasize the unique aspects of what 

might constitute a “single job”: 

. . . An individual with acrophobia who was 

offered 10 deputy assistant accountant jobs 

with a particular company, but was 

disqualified from one job because it was on 

the 37th floor . . . . An individual with some 

type of hearing sensitivity who was denied 

employment at a location with very loud 

noise, but was offered positions at other 

locations . . . . 

E.E. Black, 497 F. Supp. at 1099. 
- 25 -

In contrast to the individuals in these examples, the 

court concluded, the plaintiff in E.E. Black in fact was 

substantially limited in working because the employer’s 

criteria would preclude him from doing the jobs required to 

become a journeyman, his chosen field. Id. at 1102. 

In Jasany v. United States Postal Service, 755 F.2d 

1244 (6th Cir. 1985), a former U.S. postal employee with 

strabismus (crossed eyes) was terminated when he became 

unable to operate a sorting machine due to his condition. 

The Sixth Circuit held that Jasany was not a handicapped 

individual, as his condition did not affect his ability to carry 

out other activities required by his job, only his work on a 

particular sorting machine. Similarly, in Forrisi v. Bowen, 

794 F.2d 931 (4th Cir. 1986), an employee with acrophobia 

(fear of heights) was deemed to not be substantially limited 

in working because he was able to work in his chosen field 

except when he was “unable [because of his acrophobia] to 

exercise his acknowledged abilities above certain altitudes.” 

Id. at 935. 

This Court’s decisions in Sutton and Murphy 

involved individuals whose impairments did not 

“significantly restrict” their ability to pursue their chosen 

fields.26 In Sutton, the Court held that exclusion from the 

26 It is important to note that, in Sutton and Murphy, the Court 

confined the question of what other jobs the plaintiffs could 

perform to the class of jobs involved. This is consistent with the 

approach taken by the EEOC. See 29 C.F.R. pt. 1630, App. 

(Section 1630.2(j)). (“For example, an individual who has a back 

condition that prevents the individual from performing any heavy 

labor job would be substantially limited in the major life activity 

of working because the individual’s impairment eliminates his or 

her ability to perform a class of jobs. This would be so even if the 

individual were able to perform jobs in another class, e.g., the 

class of semi-skilled jobs.”) (emphasis added). 
- 26 -

position of “global” airline pilot for one employer did not 

constitute a substantial limitation in working since “global” 

pilot jobs constituted a small subset of pilot jobs. See Sutton, 

527 U.S. at 492-93 (citing 29 C.F.R. pt. 1630, App. 

(Section 1630.2(j)). In Murphy, the Court held that 

Mr. Murphy’s ability to be a mechanic was not substantially 

limited if the only jobs unavailable to him were those 

requiring a DOT license, a small subset of the mechanic 

“class of jobs.” Murphy, 527 U.S. at 524. The employer did 

not regard Mr. Murphy as disabled, but simply unable to 

attain a DOT license. Id. 

The district court’s conclusion, endorsed by 

Petitioner, that Ms. Williams’ ability to do a single job 

“irretrievably contradicted” her claim that she was 

substantially limited in working is worlds apart from the 

position adopted by the EEOC and this Court that the 

inability to do a single job is insufficient to show substantial 

limitation. The ability to do any job cannot strip a plaintiff 

of ADA coverage and still honor the text of the ADA, which 

requires “substantial limitation,” not total inability. 

III. THE DISTRICT COURT MISAPPLIED THE 

STANDARDS FOR SUMMARY JUDGMENT. 

Confusion over the proper subjects of inquiry for 

courts making disability determinations has led many lower 

courts, including the district court here, to impose erroneous 

evidentiary standards and to usurp the responsibility of juries 

to make factual inferences. As exemplified in this case, 

courts increasingly, and too often, resolve disability cases at 

the summary judgment stage, depriving ADA plaintiffs of a 
- 27 -

proper and complete factfinding process, and, ultimately for 

many, of the remedy that they deserve.

27 

Two critical errors highlight why the district court’s 

decision granting summary judgment was wrong. First, the 

district court rejected the report of Ms. Williams’ vocational 

expert, Dr. William Weikel, on overly technical grounds and 

based on findings inconsistent with the applicable EEOC 

regulations. Second, the district court refused to recognize 

that evidence detailing the actual limitations on the types of 

things that an individual can do with his or her hands and 

arms – here, inter alia, a ban on repetitive work, lifting, or 

work requiring arms above head – may properly support a 

factfinder’s inference that the individual is substantially 

limited in a major life activity. 

The district court rejected the expert’s report because, 

in its view, the report failed to contain all of the elements 

listed in the EEOC regulations as factors that may indicate a 

substantial limitation in working.

28 The court thereby 

erroneously translated the list of factors that the EEOC 

regulations state “may” be considered, 29 C.F.R. 

§ 1630.2(j)(3)(ii) (emphasis added). into a mandatory 

checklist. A plaintiff’s failure to come forward with 

27 Some circuit courts are reversing the trend in the district 

courts to rule on the existence of a “disability” as a matter of law 

at the summary judgment stage. See, e.g., Mullins v. Crowell, 228 

F.3d 1305 nn. 18, 21 (11th Cir. 2000); Webb v. Garelick 

Manufacturing Co., 94 F.3d 484, 487-488 (8th Cir. 1996); Katz v. 

City Metal Co., Inc., 87 F.3d 26, 32 (1st Cir. 1996). See also 

Arlene B. Mayerson, Restoring Regard for the “Regarded As” 

Prong, supra note [ ], at n. 98. 

28 See Pet. App. 39a-40a. 
- 28 -

evidence that “may” be considered does not warrant 

summary judgment in the defendant’s favor.

29 

Furthermore, the regulations speak in terms of factors 

that should or may be “considered.” 29 C.F.R. 

§ 1630.2(j)(2) & (3)(ii). The district court did not assert that 

these factors were not considered by the expert in preparing 

his report. Federal law does not require that an expert report 

recite each bit of statistical evidence on which it is based. 

Most fundamentally, even if a report such as this could have 

been more detailed, a trier of fact nonetheless could 

reasonably infer from it that Williams’ impairment precluded 

her from holding a large number of jobs. If Toyota believed 

that a more sophisticated report would have indicated 

otherwise, the company’s responsibility was to adduce such 

evidence itself. 

Even without the benefit of an expert report, a key 

issue in Ms. Williams’ case is whether a trier of fact could 

reasonably infer from the basic evidence of her physical 

impairment that Ms. Williams would be restricted in her 

ability to work. Any trier of fact familiar with the functions 

of human hands and arms, as well as with the job market in 

the Louisville area – knowledge presumptively common 

among jurors in the Central District of Kentucky – could 

accurately evaluate the practical significance of Williams’ 

impairments, regardless of whether Ms. Williams supplied a 

report that referenced every one of the suggested 

considerations cited in the EEOC guidance. Ms. Williams’ 

case is not one where the impairment at issue is one which 

29 In the preamble to the final ADA regulations, the EEOC 

emphasized that it had made a specific change from the proposed 

regulations in order to clarify “that the factors are relevant to, but 

are not required elements of, a showing of substantial limitation in 

working.” 56 Fed. Reg. 35,726, 35,728 (1991) (emphasis added). 
- 29 -

laymen might not readily understand, such as an esoteric 

neurological problem, or one in which an individual had a 

specialized career unfamiliar to most jurors. The district 

court’s per se rule that the impairment and the restrictions it 

causes can never support an inference of “substantial 

limitation” was error. In the context of Ms. Williams’ 

particular case, if Toyota thought that more detailed evidence 

might be probative and exculpatory on the substantial 

limitation issue, the company would be free to offer it at 

trial. 

Both in refusing to accord to the jury its proper role 

in making evidentiary inferences and by imposing 

extraordinary and erroneous burdens on expert evidence, the 

district court transgressed the legal standards set forth by this 

Court in Reeves v. Sanderson Plumbing Products, Inc., 530 

U.S. 133 (2000). In Reeves, the Court took a strong stand 

against lower courts’ imposing additional burdens on 

plaintiffs seeking remedy for discrimination, emphasizing 

the proper inferences that a factfinder may make regarding 

key elements in discrimination cases. See id. at 148. 

Surviving summary judgment requires only that the 

nonmoving party have raised a “genuine issue [of] material 

fact.” Fed R. Civ. P. 56(c). Thus, on the issue of whether a 

plaintiff is “disabled,” the standard for denial of summary 

judgment is not whether the evidence proferred to show 

disability is conclusive or perfect, but whether it would 

reasonably support an inference that the plaintiff is disabled. 

The district court here failed to apply that standard properly. 
- 30 -

CONCLUSION 

For all the foregoing reasons, this Court should 

affirm the judgment below. 

NANCY L. PERKINS 

ARNOLD & PORTER 

555 Twelfth Street, N.W. 

Washington, D.C. 20004 

(202) 942-5065 

Respectfully submitted, 

ARLENE MAYERSON* 

DISABILITY RIGHTS 

EDUCATION AND 

DEFENSE FUND 

2212 Sixth Street 

Berkeley, CA 94710 

(510) 644-2555 

*Counsel Of Record 

Counsel for Amicus Curiae 

August 31, 2001