Delaware Assistive Technology Initiative

	Vol. 7, No. 4 Fall 1999	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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U.S. Supreme Court Addresses Ambiguities in the Americans with Disabilities Act: More Litigation Likely

by Daniel G. Atkins, Disabilities Law Program, Community Legal Aid Society, Inc.

In 1999, the United States Supreme Court issued three major decisions interpreting the Americans with Disabilities Act, the seminal 1990 federal legislation that protects individuals with disabilities in the workplace and in the community.

Social Security and the ADA

After suffering a disabling stroke and losing her job as a background checker because she suffered damaged concentration, memory, and language skills, Carolyn Cleveland applied for and ultimately obtained Social Security Disability Insurance (SSDI) benefits. In order to qualify for SSDI, a claimant must be disabled and unable to work. Ms. Cleveland then filed a lawsuit alleging that her employer had discriminated against her in violation of the Americans with Disabilities Act (ADA) by not reasonably accommodating her disability. In order to be a qualified person under the ADA, a claimant must be able to perform the essential functions of her job, at least with reasonable accommodation. The employer took the position that applying for SSDI and filing a claim under the ADA are mutually exclusive-how can you be unable to work and at the same time be able to perform the essential functions of the job? On May 24, 1999 the Supreme Court, in Cleveland v. Policy Management Systems Corp., unanimously held that it is possible for someone to be eligible for SSDI and at the same time be a qualified person under the ADA. The key, according to the Court, lies in the term "reasonable accommodation." In order to qualify for SSDI, claimants must show an inability to do their own job or other jobs without a reasonable accommodation. Therefore, SSDI claimants can allege at the same time that with a reasonable accommodation, they are able to perform their jobs. The Cleveland case is obviously a victory for the many members of the disability community who are or were recently employed. It preserves the availability of two very different, yet both vitally important, avenues of recourse.

Narrowing the Scope of the ADA

Just one month later, in Sutton v. United Air Lines, Inc., the Court issued a blow to the disability community. Karen Sutton and Kimberly Hinton, twin sisters, applied to be commercial airline pilots. They met United's age, education, experience and FAA certification qualifications, yet they were rejected because they did not meet United's minimum vision requirement, which was uncorrected visual acuity of 20/100 or better. The sisters have severe myopia, with uncorrected visual acuity of 20/200 in the right eye, and 20/400 in the left eye. However, with the use of corrective lenses, each has at least 20/20 vision. The sisters alleged that they were being discriminated against on the basis of their disabilities.

United sought to dismiss the lawsuit on the basis that the sisters were not qualified individuals under the ADA because they had fully correctable visual impairments, and thus were not substantially limited in a major life activity as is required under the ADA's definition of a qualified individual. The sisters alleged that without corrective lenses they could not see to drive, watch TV, or shop, but that with corrective lenses, they conceded that they function identically to individuals without myopia.

If the case had been allowed to proceed to trial, the airline would have been able to avoid liability by showing that the vision requirement is job-related and consistent with business necessity or that myopia, even if corrected, poses a safety hazard. However, instead, the Court held that the sisters do not have a disability that substantially limits a major life activity because their condition is correctable. Furthermore, the Court reasoned that if Congress had intended for everyone with a correctable condition such as myopia to be covered by the ADA, then 160 million might be covered, rather than the 43 million referenced in the Act's preamble.

Obviously, the significance of the Sutton decision reaches far beyond people with myopia and the employment context. Millions of individuals with severe disabilities, who with rehabilitation, self-improvement, medication, or prosthetic devices, can perform major life activities could be precluded from protection under the ADA. People who take insulin to control diabetes1, medication to combat mental illness, or even those who use wheelchairs or other devices to gain mobility could be considered "not disabled." The Court seems perversely unreceptive to the argument that a person who is hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of a hearing aid. The cruel irony is that now the Court may have rendered the ADA inaccessible for a huge portion of the 43 million people with disabilities contemplated in the Act. At the very least, it has invited employers, public accommodations, and government entities to challenge the disability-related status of millions of people whose conditions have triggered discrimination.

Community Integration

Falling somewhere between Sutton and Cleveland is Olmstead v. L.C. In Olmstead, two Georgia women, dually diagnosed with mental retardation and mental illness (one with a personality disorder, the other with schizophrenia), had been confined to a mental institution. The women, with the help of a legal aid lawyer, filed a lawsuit alleging that the state of Georgia was discriminating against them on the basis of their disabilities, and thus violating Title II of the ADA(the public or government services portion) by not treating them in a community placement instead of an institution. The preamble of the ADA states that:

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as institutionalization;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, failure to make modifications to existing facilities and practices, [and] segregation. 42 U.S.C. § 12101(a)(2), (3), (5).

In its relevant portion, the body of Title II of the ADA mandates that:

no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Congress instructed the Department of Justice to issue regulations implementing Title II. The Department promulgated the following regulation:

A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 CFR § 35.130(d) (1998).

The Court interpreted the provisions detailed above and held that unjustified isolation of individuals with disabilities is unlawful discrimination on the basis of disability. The Court reasoned not only that such segregation perpetuates unwarranted assumptions that people with disabilities are incapable and unworthy of participating in community life, but also because confinement in institutions severely curtails everyday life activities, such as family relations, social contacts, work, educational advancement, and cultural enrichment.

However, the Court indicated that deinstitutionalization should not come at all costs. States should consider the cost of providing community-based care to the individuals, the range of services available to others similarly situated, and the effect that community placement would have on others in similar situations. If the State can show it has a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace, the State would be justified in not moving an eligible person from the wait list to a community placement. Moreover, the Court held that the State may rely on the reasonable assessments of its professionals in determining whether an individual would be appropriate for community placement.

Conclusion: Is the Glass Half Empty or Half Full?

The Supreme Court took the opportunity this past year to address some important provisions of the Americans with Disabilities Act. On the bright side, the Court clarified inconsistency between the ADA and the Social Security process to the benefit of individuals with disabilities, and reaffirmed the significance of the ADA's community integration mandate. However, at the same time, the Court significantly narrowed the definition of disability, and created some gaping exceptions to the community integration mandate.

With an important case on the Court's agenda for next term that questions the applicability of the ADA to States, individuals with disabilities and their advocates have a right to be very concerned about the vitality and viability of the ADA. At least two of the decisions this year do not portend good things to come.