Ever since disability discrimination became illegal, the most pressing question has been how to define a disability. One of the first issues the courts faced was how to deal with disabilities that could be corrected with mitigating factors. For example, a nearsighted person may well be substantially limited in his ability to see, but that disability can be corrected by eyeglasses or contact lenses. So, how does a court treat such a plaintiff?
Originally, both the Department of Justice and the Equal Employment Opportunity Commission determined that mitigating measures should not be considered in determining whether a plaintiff is disabled. In the original “Enforcement Guidance,” the EEOC stated that the determination of whether an individual is qualified must be determined “without regard to mitigating measures such as medicines or assistive or prosthetic devices.” Subsequently, and consistent with the legislative history, eight of the nine Federal Circuits Courts of Appeals supported that the determination of disability should be made without regard to mitigating measures; the only converse decision was from the Tenth Circuit.
As a result of this one inconsistent holding, the U.S. Supreme Court took up the issue in Sutton v. United Air Lines. In 1992, twin sisters, Karen Sutton and Kimberly Hinton, both sought pilot positions with United Air Lines. Both passed United’s general pilot employment requirements. Yet, when they appeared for interviews, they were told that they were mistakenly accepted because they did not meet United’s minimum requirements for vision. Apparently, both sisters suffered from severe myopia which affected their vision. However, their corrected vision with glasses or lenses was 20/20. Due to this vision issue neither was offered a position with United.
Upon review, the Supreme Court determined that the ameliorative effects of mitigating measures should in fact be taken into account when determining whether an individual was disabled. The Court firmly resolved the debate at that time by determining that all impairments must be assessed in their mitigated state when considering whether a claimant can successfully prove he or she has a disability under the ADA.
In a surprising turn of events, Congress changed the legal landscape. On September 25, 2008, George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA. Most specifically, the ADAAA clearly states that mitigating measures may not be taken into account when determining if an individual is qualified as an individual with a disability under the ADA — the opposite of the holding reached in Sutton. As it now stands, in making a determination as to whether an individual is qualified for protection under the ADA, mitigating measures may no longer be taken into consideration.