Pretty clear, if you want to "Fly the Friendly Skies," it's best to have
20/20 vision.






              June 23, 1999


              High Court Limits Who Is Protected by Disability
              Law


              Related Articles
              Justices Hear Disability Cases on Vision (April 29, 1999)
              Pivotal Rulings Ahead: Supreme Court to Begin Review of Americans
              With Disabilities Act (April 19, 1999)
              From Eyeglasses to Wheelchairs: Adjusting the Legal Bar for
Disability
              (April 18, 1999)
              Issue in Depth: Supreme Court Guide

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              Join a Discussion on Issues Before the Supreme Court


              By LINDA GREENHOUSE

                       ASHINGTON -- Resolving one of the most pressing
questions of federal
                       disability law, the Supreme Court ruled Tuesday that
people with physical
                       impairments who can function normally when they wear
their glasses or take their
              medicine generally cannot be considered disabled and
therefore do not come within the law's
              protection against employment discrimination.

              By a surprisingly wide 7-2 margin, the Court took a restrictive
              view of the definition of disability under the Americans With
              Disabilities Act of 1990. Employers greeted the decision with
              relief, saying it would prevent an uncontrollable expansion of
              the law, while advocates for people with disabilities said
the court's definition of disability
              would remove the law's protection from millions of people who
needed it.

              The Court ruled in three separate cases, rejecting the
discrimination claims in each one by the
              same 7-2 vote. The dissenters in each case were Justices John
Paul Stevens and Stephen G.
              Breyer; Justice Sandra Day O'Connor wrote two of the majority
opinions and Justice David
              H. Souter wrote one.

              The losing plaintiffs were: two nearsighted women, twin
sisters with vision correctable to
              20/20, whom United Airlines turned down for jobs as pilots; a
truck driver with functional
              vision in only one eye, who saw normally for most purposes
but who was dismissed for not
              meeting the federal vision standard for driving commercial
vehicles, and a hypertensive
              automobile mechanic, whose blood pressure kept him from
meeting federal standards for
              driving a truck but, when controlled by medication, left him
able to hold non-driving
              mechanics' jobs.

              In a separate ruling Tuesday, the Court interpreted another
provision of the Americans With
              Disabilities Act to give states the obligation to care for
people with mental and other
              disabilities in group homes or other non-institutionalized
settings, when medically
              appropriate and not an unreasonable burden on the a state's
resources.

              In the trio of employment discrimination cases, there were
several secondary issues but there
              was one central question: should a "disability" be measured
in its untreated state or in light of
              any corrective measures that can enable a person to function
normally?

              O'Connor answered the question in the leading case, the suit
by the twin sisters against
              United Airlines. The sisters flew as pilots for regional
airlines, and met federal vision
              standards for airline pilots, but were turned down by United
because they did not meet its
              standard for uncorrected vision of 20/40.

              O'Connor said that three provisions of the disability law led
to the conclusion that people
              with remediable conditions were not disabled.

              First, she said, was the law's definition of disability as an
impairment that "substantially
              limits one or more of the major life activities," a
definition expressed in the "present
              indicative verb form," O'Connor noted. "We think the language
is properly read as requiring
              that a person be presently -- not potentially or
hypothetically -- substantially limited in order
              to demonstrate a disability," she said, adding that "a
'disability' exists only where an
              impairment 'substantially limits' a major life activity, not
where it 'might,' 'could,' or
              'would' be substantially limiting if mitigating measures were
not taken."

              A person with a corrected impairment still has the
impairment, O'Connor said, "but if the
              impairment is corrected it does not 'substantially limit' a
major life activity."

              Second, she said, the law requires that people be assessed on
the basis of their individual
              conditions, not as members of a group that is usually
affected in a particular way by an
              uncorrected impairment.

              Finally, O'Connor said, the findings that Congress
incorporated in the text of the law
              included the statement that "some 43,000,000 Americans have
one or more physical or
              mental disabilities." O'Connor said that while the source of
this figure was uncertain,
              Congress could not possibly have meant to include all the
people who wear glasses or have
              some other correctable problem, because the number in that
case would be closer to 160
              million. "The 43 million figure reflects an understanding
that those whose impairments are
              largely corrected by medication or other devices are not
'disabled' within the meaning of the
              ADA," she said.

              In the dissenting opinion in this case, Sutton v. United
Airlines, No. 97-1943, Stevens,
              joined by Breyer, said that "in order to be faithful to the
remedial purpose of the act, we
              should give it a generous, rather than a miserly,
construction." Congress's use of the 43
              million figure may have been a form of "legislative myopia,"
Stevens said, that should not be
              invoked to determine the scope of the law.

              "Since the purpose of the ADA is to dismantle the employment
barriers based on society's
              accumulated myths and fears," Stevens continued, "it is
especially ironic to deny protection
              for persons with substantially limiting impairments that,
when corrected, render them fully
              able and employable."

              He said, referring to the sisters in the case: "If United
regards petitioners as unqualified
              because they cannot see well without glasses, it seems
eminently fair for a court also to use
              uncorrected vision as the basis for evaluating petitioners'
life activity of seeing."

              The criticism from advocates for people with disabilities
mirrored Stevens's dissent.
              Professor Chai Feldblum of Georgetown Law School, one of the
drafters of the law, said the
              decisions "create the absurd result of a person being
disabled enough to be fired from a job,
              but not disabled enough to challenge the firing." Sen. Tom
Harkin, D-Iowa, who was one of
              the chief Senate sponsors, said the decision "undermined one
of the most basic principles of
              the ADA," which he said was to "eliminate discrimination
against every individual with a
              disability."

              But Stephen Bokat, general counsel of the U.S. Chamber of
Commerce, praised the court's
              interpretation for avoiding a "huge growth in the number of
cases." He said the most
              important aspect of the rulings from an employer's
perspective was the Court's conclusion
              that "creating physical criteria for a job ordinarily does
not violate the ADA." He added: "The
              statute protects you from discrimination in a class of jobs,
but it does not guarantee you a
              particular job."

              David Fram, director of the National Employment Law
Institute, an organization here that
              trains corporate managers and others on how to apply the
disabilities law, called the
              decisions "a great victory for management." He said he was
"shocked" by the Court's "very
              hard line." He noted that most lower courts, as well as the
Equal Employment Opportunity
              Commission, had taken the opposite view.

              In her opinion in the United Airlines case, O'Connor said "an
employer is free to decide that
              physical characteristics or medical conditions that do not
rise to level of am impairment --
              such as one's height, build, or singing voice -- are
preferable to others, just as it is free to
              decide that some limiting, but not substantially limiting,
impairments make individuals less
              than ideally suited for a job."

              O'Connor rejected a suggestion in the dissenting opinion that
even people with artificial
              limbs would not be considered disabled under the majority's
analysis. People may be highly
              functional with prosthetic devices but still be
"substantially limited" in such activities as
              walking or running, she said.

              She noted that under another provision of the law, people
with correctable impairments may
              still be covered as disabled if an employer "regards" them as
disabled. However, the
              majority's analysis of the law's "regarded as disabled" prong
appeared to be somewhat
              limiting; to come within this section, O'Connor said, a
person would have to be regarded as
              "unable to work in a broad class of jobs," not just the job
in question.

              The other two cases were Murphy v. United Parcel Service, No.
97-1992, and
              Albertson's v. Kirkingburg, No. 98-591. Chief Justice William
H. Rehnquist and
              Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas,
and Ruth Bader Ginsburg
              joined the majority opinions by O'Connor and Souter.






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