Erica Harris*

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 EEOC’s interpretation, an impairment that might be substantially limiting in the absence of some mitigating measure is a disability. The EEOC’s 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 ADA’s 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 ADA’s 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 ADA’s 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.