Federal Courts Divided Over Whether Medication or Other Mitigating Measures Should Be Considered in Determining Whether an Employee is "Disabled" Under the ADA

Ostolaza, Yvette, Zambrano, Angela C.

(Winter/Spring 1999, ABA Labor Lawyer)

The Americans with Disabilities Act (“ADA”) prohibits covered entities from discriminating against a qualified individual because an individual has a “disability.”  42 U.S.C. § 12112(a).  Accordingly, to be covered by the statute, an individual has to establish that he or she is “disabled” within the meaning of the ADA.  A “disability” is defined under the ADA as a “physical or mental impairment that substantially limits one or more of the [individual’s] major life activities.”  Id. at  §12102(2)(A).  Unfortunately, the ADA does not specify whether the existence of a disability or the determination of whether a disability substantially limits a major life activity should be made without considering medication or other mitigating measures.  Thus, the ADA is unclear as to whether mitigating measures, such as hearing devices, medication, and prostheses, should be considered in determining whether a person is “disabled.”

This ambiguity in the definition of a “disability” has left federal courts to develop their own case-by-case approach to determine whether an individual with an impairment — which is effectively controlled by medication or other mitigating measures — should be covered by the ADA.  Not surprisingly, the circuit courts are divided on this issue. The majority of circuit courts have concluded that an individual’s disability should be evaluated without regard to medication and other mitigating measures. Two circuit courts have reached a contrary conclusion.  Although the United States Supreme Court recently acknowledged that the Equal Employment Opportunity Commission Interpretive Guidelines could be construed to require that the impairment be assessed without regard to available mitigating measures, the Court failed to resolve the issue.¹  See Bragdon v. Abbott, __ U.S. __, 118 S. Ct. 2196, 2206 (1998).²

The Fifth Circuit’s Decision in Washington v. HCA Healthcare of Texas  
Recently, in Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464 (1998), the Fifth Circuit addressed the issue of whether medication and other mitigating measures should be considered in evaluating whether an individual is disabled under the ADA.  Specifically, the Court held that medication and mitigating measures should be considered under certain circumstances.  Id. at 471.  The Washington court ruled that mitigating measures and medication would not be considered in determining whether an individual with a serious impairment is disabled only when the use of such measures or medication are continuous and recurring.  Id. at 470-71.

The Facts
In Washington, the plaintiff was a senior accountant for a Texas hospital.  The former employee alleged that the hospital discriminated against him in violation of the ADA because he suffered from Adult Stills Disease.  The employee was able to control the effects of his disease by taking prescription medication four times a day.  Without the medication, the plaintiff would have been bedridden.

During a busy time at the hospital, the plaintiff was working sixty to eighty hours per week.  He collapsed at work and his doctor recommended that he limit his work to ten hours per day and fifty hours per week.  The plaintiff’s doctor believed that the disease had advanced because the plaintiff had been working the additional hours.  The employee notified his supervisor of his doctor’s advice and, through his lawyer, requested an accommodation under the ADA.  The plaintiff claimed that the hospital denied his request for an accommodation.  Nonetheless, he only worked fifty hours a week after receiving his doctor’s advice.  Sometime after the plaintiff requested an accommodation, the hospital eliminated the plaintiff’s position.  Subsequently, the plaintiff filed an action arguing that the hospital terminated his employment because of his disability, in violation of the ADA.

Employer’s Motion for Summary Judgment Denied and the Interlocutory Appeal
The hospital filed a motion for summary judgment claiming that the plaintiff was not “disabled” within the ADA since his disease was effectively controlled by medication.  The trial court denied the employer’s motion, ruling that plaintiff’s condition should be considered in its unmedicated state.  The trial court recognized, however, that this question was a novel issue in the Fifth Circuit and certified it for interlocutory appeal.

On appeal, the Fifth Circuit agreed that the case was a matter of first impression and reviewed the EEOC’s Interpretive Guidelines and the legislative history of the ADA.  The court noted that the House Education and Labor Committee Report indicated that a person with a hearing loss is considered substantially limited in the major life activity of hearing even though a hearing aid could improve the individual’s hearing ability.  See H.R. Rep. No. 101-485(II) at 52 (1990).  The same Report noted that epilepsy and diabetes met the “disability” definition, even though the effects of the impairments could be controlled through medication.³  The court also noted that the EEOC had determined that a plaintiff should be assessed in his or her unmedicated condition to determine whether he or she is disabled within the meaning of the ADA.  See 29 C.F.R. App. § 1630.2(j) (1996).

The Fifth Circuit decided to give the House Reports and the EEOC interpretive Guidelines weight, concluding that the House Reports were expressly on point and the EEOC Interpretive guidelines were entitled to great deference.  152 F.3d at 468, 470.  Although the Fifth Circuit chose to give deference to the EEOC Interpretive Guidelines, the court stated that “[t]here is nothing in the EEOC Interpretive Guidelines and legislative history that suggests that all impairments must be considered in their unmitigated states and no mitigating measures may ever be taken into account.”  Id. at 470.  The Washington court then held that only serious impairments and ailments that are analogous to those mentioned in the EEOC Interpretive Guidelines and the legislative history (e.g., diabetes, epilepsy, and hearing impairments) will be considered in the unmitigated state.  Id. at 471.  In addition, the court held that the impairment must be serious in “common parlance,” and require use of the mitigating measures on a frequent basis.  Id. at 470.  The court stressed that courts should disregard mitigating measures only when the measures were continuous and recurring.  Id.  Applying this standard, the Fifth Circuit concluded that Adult Stills Disease was sufficiently analogous to the ailments contemplated in the legislative history and the EEOC interpretive Guidelines, and thus, the plaintiff was disabled within the meaning of the ADA.

The Fifth Circuit did not join the majority of circuit courts that consider an individual’s disability without regard to mitigating measures.  Rather, the court created a hybrid analysis.  Lower courts will be required to evaluate a particular condition and the mitigating measures employed in connection with that condition to determine whether it falls within the category of impairments that the EEOC and Congress envisioned when the ADA was enacted.  If the impairment is serious and the mitigating measures are continuous and recurring, then the measures are not to be considered and the individual’s condition is evaluated in its unmitigated state.

Circuits Disregarding Medication and Mitigating Measures
The majority of circuit courts have held that whether a person is disabled, within the meaning of the ADA, should be determined without regard to the availability of mitigating measures.  See, e.g., Bartlett v. New York State Bd. of Law Exam’rs, 156 F.3d 321, 329 (2d Cir. 1998) (bar examinationapplicant with learning disability disabled despite her ability to self-accommodate); Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 629 (7th Cir. 1998) (insulin-dependent diabetic disabled); Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 866 (1st Cir. 1998) (insulin-dependent diabetic disabled despite fact that diabetes was controlled with medication); Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 936-37 (3d Cir. 1997) (epileptic disabled despite fact that condition controlled with medication); Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir. 1997), cert. denied, 118 S. Ct. 693 (1998) (employee with monocular vision disabled despite fact that his brain mitigated effects of impairment); Harris v. H & W Contracting Co., 102 F.3d 516, 520-23 (11th Cir. 1996), reh’g denied, 109 F.3d 773 (11th Cir. Feb. 28, 1997) (employee with Graves disease, treated with thyroid medication, disabled); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996), cert. denied, 117 S.Ct. 1349 (1997) (court did not consider treatment when determining employee with stress and depression disorder not disabled).  These courts have essentially examined the EEOC Interpretative Guidelines and determined that the EEOC’s view should be accorded deference.

The district courts have also largely endorsed the EEOC’s position.  See, e.g., Smith v. Horton Indus., Inc., __ F. Supp. 2d __, 1998 WL 702325, at *2 - *5 (D.S.D. Sept. 2, 1998) (employee with prosthetic arm disabled); Denson v. Village of Bridgeview, __ F. Supp. 2d __, 1998 WL 559785, at *5 (N.D. Ill. Aug. 24, 1998) (applicant with 20/400 uncorrected vision disabled despite fact that eyeglasses or contact lenses corrected vision); Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 746 (N.D. Ill. 1998) (insulin-dependent diabetic disabled); Wright v. City of Tampa, 998 F. Supp. 1398, 1402 (M.D. Fla. 1998) (employee with blood disorder, evaluated in its unmedicated state, survived summary judgment); Coleman v. Southern Pac. Transp. Co., 997 F. Supp. 1197, 1199-1204 (D. Ariz. 1998) (employee with monocular vision disabled despite fact that impairment mitigated by employee’s use of more frequent head movements and eye scanning); Rouse v. Plantier, 997 F. Supp. 575, 581-82 (D.N.J. 1998) (diabetic prisoners survived summary judgment despite fact that medication substantially controlled effects of disease); Equal Employment Opportunity Comm’n v. Union Pac. R.R., 6 F. Supp. 2d 1135, 1136-37 (D. Idaho 1998) (employee with monocular vision disabled despite fact that brain had adjusted to the condition); Sherback v. Wright Automotive Group, 987 F. Supp. 433, 436-37 (W.D. Pa. 1997) (employee with post-traumatic stress disorder whose condition was treated with psychotropic medications and psychiatric counseling survived summary judgment); Wilson v. Pennsylvania State Police Dep’t, 964 F. Supp. 898, 907-09 (E.D. Pa. 1997) (police officer with myopia survived summary judgment despite fact that vision was correctable to 20/20 with eyeglasses or contacts); Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 204-07 (E.D.N.Y. 1997) (employee with asthma, somewhat treatable with medication, survived summary judgment); Peacock v. County of Marin, 953 F. Supp. 306, 309 (N.D. Cal. 1997) (employee with myopia treatable with contacts or glasses disabled); Sicard v. City of Sioux City, 950 F. Supp. 1420, 1439 (N.D. Iowa 1996) (employee with myopia treatable with contacts or glasses survived summary judgment); Canon v. Clark, 883 F. Supp. 718, 721 (S.D. Fla. 1995) (insulin-dependent diabetic survived motion to dismiss); Sarsycki v. United Parcel Serv., 862 F. Supp. 336, 339-40 (W.D. Okla. 1994) (insulin-dependent diabetic disabled); Thomas v. Davidson Academy, 846 F. Supp. 611, 617-18 (M.D. Tenn. 1994) (student with serious blood disorder disabled).  

Note that the federal courts have broadly considered whether a particular condition constitutes a “disability” by treating external and internal ameliorative measures in the same manner.  Compare Bartlett, 156 F.3d 321 (applicant’s learning disability self accommodated); Doane, F.3d at 627-28 (employee’s brain accommodated impairment); Coleman, 997 F. Supp. at 1199-1204 (employee’s vision problems mitigated by employee’s use of more frequent head movements and eye scanning); with Arnold, 136 F.3d at 866 (insulin-dependent diabetes controlled by medication); Matczak, 136 F.3d 933, 936-37 (epilepsy controlled by medication).  However, none of these courts have held that the use of mitigating measures automatically establishes a disability.  See Roth, 57 F.3d at 1454; Coghlan v. H.J. Heinz Co., 851 F. Supp. 808, 813-14 (N.D. Tex. 1994) (insulin-dependent diabetic not disabled per se).

Circuits Considering Medicating and Mitigating Measures
The Sixth and Tenth Circuits have held that medication and mitigating measures are properly considered in evaluating whether an individual is disabled under the ADA.  See Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3783 (U.S. June 1, 1998) (No. 97-19); Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir. 1997) (J. Kennedy, concurring in part and dissenting in part). Thus, in these circuits an individual’s condition is evaluated in light of the individual’s use of medication or other mitigating or ameliorative measures.

For example, in Sutton, the plaintiffs argued they were disabled because their uncorrected vision substantially limited the major life activity of seeing.  The Tenth Circuit acknowledged that the plaintiffs were physically impaired.  Id. at 900.  However, the court considered the fact that plaintiffs’ vision could be corrected with eyeglasses or contacts, and therefore, determined the plaintiffs’ impairment did not substantially limit a major life activity.  Id. at 902.  In reaching this conclusion, the court found that the EEOC’s Interpretive Guidelines are in direct conflict with the plain language of the ADA.  The Sutton court explained: