The Six Million Dollar Man would be disabled under the Americans
with Disabilities Act ("ADA") according to the interpretive
guidelines issued by the Equal Employment Opportunity Commission
("EEOC"). In its appendix of interpretive guidelines to
the ADA, the EEOC states that "[t]he determination of whether
an individual is substantially limited in a major life activity
must be made on a case by case basis, without regard to mitigating
measures such as medicines, or assistive or prosthetic devices."
29 C.F.R. Pt. 1630, App. § 1630.2(j). In other words, courts
and employers would have to ignore the medical miracle of the Six
Million Dollar Man and determine whether he is disabled by looking
at his pre-surgery condition. Would he be disabled if he didn't
have a prosthetic eye, legs, and arm? Of course. Does it matter
that he is "faster, stronger, and better" than he was
before? Not according to the EEOC.
While the example of the Six Million Dollar Man may be extreme,
the reality is not far off. Deferring to the EEOC's position under
the Chevron doctrine, courts have held that individuals who can
see with corrective lenses, but are nonetheless legally blind without
the lenses, are disabled. Sweet v. Electronic Data Systems, Inc.,
1996 WL 204471 (S.D.N.Y. 1996); Sicard v. City of Sioux City, 1996
WL 738519 (N.D. Iowa 1996). A circuit court has held that a woman
with a thyroid condition that is completely controlled with medication
is disabled and could challenge her termination under the ADA. See
Harris v. H & W Contracting Company, 102 F.3d 516 (11th Cir.
1996). These cases, known as the "controlled impairment"
cases, have split the lower courts.
Designating individuals with controlled impairments as disabled
is not only nonsensical, but completely counter to the statutory
language of the Act. The ADA defines disability as "a physical
or mental impairment that substantially limits one or more of the
major life activities of such individual." While this is a
vague definition, it clearly states that an impairment must substantially
limit one or more major life activities. Yet, under the EEOCs
interpretation, an impairment that might be substantially limiting
in the absence of some mitigating measure is a disability. The EEOCs
guideline effectively requires courts and employers to consider
hypothetical disabilities. Instead of focusing on whether an individual
is actually substantially limited, the guideline asks whether an
individual would be substantially limited if some mitigating measure
was absent. This hypothetical approach is not only counterintuitive,
but also is in conflict with the much-touted fact that disability
under the ADA is a functional, not medical, definition.
Moreover, individuals with controlled impairments do not fit within
even the ADAs liberal premise. Advocates of the ADA proposed
two rationales for the Act. First, like Title VII, the ADA intends
to protect individuals from being discriminated against based on
an uncontrollable characteristic. Second, by requiring employers
to provide "reasonable accommodation" for individuals
with disabilities, the ADA protects disabled individuals from being
forced out of the workplace by providing a safety-net of resources
expended for their benefit. Even accepting these rationales, individuals
with controlled impairments are undeserving of ADA protection. Individuals
with controlled impairments have not been historically discriminated
against because employers are generally unaware of any impairment.
For example, an employer is not going to know an employee has hypertension
controlled by medication unless the employee tells him of his nonobvious,
medical condition. Employers do not attach discriminatory stereotypes
to such controlled impairments because the effects of these impairments
are controlled. Because they suffer no substantial limitation of
any major life activity, individuals with controlled impairments
should be easily employable. Prospective employers will not be aware
of their impairments unless the employees report the condition.
Simply put, individuals with controlled impairments do not deserve
extra protection or assistance in the workplace.
If controlled impairments are unobservable and if employers have
to know about a disability before being subjected to ADA liability,
when would individuals with controlled impairments likely sue? Whenever
they want to act strategically. Individuals with controlled impairments
who want to avoid an upcoming reduction in force simply have to
notify their supervisor of their hidden condition and they will
have earned themselves essentially just cause protection. Slackers
who want to take advantage of the ADAs reasonable accommodation
requirement simply have to be creative with their claims of impairment.
Thus, in Murphy v. United Parcel Service, Inc., 946 F. Supp. 872
(D.Kan. 1996), the plaintiff, who suffered from hypertension, claimed
that he should be exempted from the requirement that he be able
to drive a truck where he could not pass the physical exam required
by the state licensing agency. In Sweet v. Electronic Data Systems,
Inc., 1996 WL 204471 (S.D.N.Y. 1996), the plaintiff demanded that
his employer pay for audio and video tapes to accommodate his complaint
of eye strain from reading sales materials. In Gilday v. Mecosta
County, 124 F.3d 760 (6th Cir. 1997), the plaintiff, an emergency
medical technician, asserted a right to be transferred to a "less
chaotic situation" because his diabetes made him unable to
deal with the stress of his current position without being rude
to patients. In each of these cases, the plaintiff did not experience
any substantial limitation from the complained of impairment because
of medication or some other mitigating measure, yet demanded the
right to have the impairment accommodated!
Because the benefits of reasonable accommodation and virtual just
cause protection are considerable, they serve as tremendous incentives
for employees to manipulate the ADAs definition of disability.
The opportunity to manipulate the coverage issue is unique to the
ADA; no other anti-discrimination statute contains a flexible definition
of the class it protects. Race, sex, and age are all immutable characteristics.
Plaintiffs either are or are not within the protected class. In
contrast, the protected class of the ADA is indefinite. By providing
a malleable definition of disability and extraordinary benefits,
the ADA encourages creative employees to search for a basis to claim
disability protection. By adopting a rule that forces courts and
employers to deny reality, the EEOC has indicated that the ADA is
open to such manipulation.
*Erica Harris is an Olin Fellow in Law and Visiting Lecturer at
the University of Virginia School of Law.