EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Mitigating Measures
December 4, 2006
This responds to your October 31, 2006 email to the Office of Legal Counsel, Equal Employment Opportunity Commission (Commission), asking whether under the Americans with Disabilities Act (ADA) “assessments of potential disability . . . need to consider both the disability condition and potentially offsetting strengths.” Your email further asked whether an individual’s potential “strengths” might “reduce or even negate the disability.”
In our view, your inquiry raises two separate issues. The first issue is whether an individual with an impairment that rises to the level of an ADA-covered disability nevertheless may fall outside the coverage of the ADA because his or her limitations have been mitigated through medication, assistive devices (such as eyeglasses, hearing aids, or prosthetic limbs), or physiological adaptation. As you know, the ADA prohibits discrimination on the basis of disability. A person is deemed “disabled” for purposes of coverage under the act if he or she has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or [is] being regarded as having such an impairment.”1 In the “Sutton trilogy” of cases, the US Supreme Court made clear the need to consider both the impact of an impairment as well as the use of measures that mitigate the individual’s impairment, such as corrective devices and medication.2 The Court emphasized that disability should be assessed by looking at the actual limitations the individual faced at the time of the alleged discrimination and determine whether they meet the substantially limited standard. In the Sutton cases, the Court found mitigation in the wearing of corrective lenses (Sutton); the use of medication (Murphy); and the individual’s physical ability to compensate for the impairment (Albertson’s). 3
Of the three cases, Albertson’s may be most instructive here. In this case, the plaintiff had monocular vision. The Court noted that although monocular vision “inevitably leads to some loss of horizontal field of vision and depth perception” and will “ordinarily” constitute a disability, the ADA requires individuals to prove, on a case-by-case basis, that their limitations are “substantial.” In this case, the plaintiff was unable to make this proof because he “had learned to compensate for the disability by making subconscious adjustments to the manner in which he sensed depth and perceived peripheral objects.” The Court concluded that mitigating measures must be taken into account in judging whether an individual possesses a disability: “We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems.”4 In other words, the plaintiff’s body made the adjustments necessary to offset the effects of the impairment and he thus fell outside of ADA coverage; the “strengths” of his physiological adaptation offset the effect of his monocular vision, and he was found not disabled.
Your second question appears to be whether an individual who has an unmitigated disability – that is, an individual with an impairment that substantially limits a major life activity – nevertheless may benefit through other “offsetting strengths” to the point where the disability does not affect the individual’s ability to perform essential job functions. In this situation, the ADA protects the individual from discrimination based on his or her disability; the fact of the person’s status as an individual with a disability is unaffected by these “strengths.” For example, in Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002), the plaintiff, an applicant for an emergency medical technician (EMT) position, was a genetic amputee: her left arm ended inches below her elbow and she did not use a prosthetic device. Despite the absence of her lower left arm, she would have been able to perform the essential functions of the EMT position because she offset her impairment through strength conditioning and development of alternative lifting strategies. Nonetheless, the court ruled that she was disabled because “the manner in which she lifts and the conditions under which she can lift will be significantly restricted because she only has one available limb.” The court further noted that “[t]he key question is not whether a handicapped person accomplishes her goals, but whether she encounters significant handicap-related obstacles in doing so.”
Based on the foregoing and in response to your inquiry, if an individual’s “offsetting strengths” negate the effects of an impairment, the individual may no longer be deemed “disabled” for purposes of ADA coverage. On the other hand, if these strengths do not impact the effects of the impairment but nevertheless enable the individual to perform essential job functions, the individual would remain covered by the ADA. For example, an individual with a vision impairment whose use of corrective lenses mitigates the effect of the impairment would not be deemed disabled. By contrast, a person with a vision impairment for whom no such mitigation is available but who is able to receive and understand information transmitted aurally has developed a “strength,” but one that does not affect his or her status as an individual with an ADA-covered disability.
I hope this discussion of the issues is helpful. Please note that this letter is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC. If you have any questions, please feel free to contact either me at (202) 663- or Peter S. Gray, Senior Attorney Advisor at (202) 663-.
Carol R. Miaskoff
Assistant Legal Counsel
1 42 U.S.C. § 12102(2).
2 The three Sutton trilogy cases are Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
3 The Court also requires consideration as to whether the mitigating measure itself causes any limitations in performing a major life activity. For example, some medicines affect concentration or other cognitive functions to a degree that might be substantially limiting, even though the medication may alleviate symptoms of the impairment. For an extended discussion concerning mitigating measures and how they should be assessed when determining whether an individual may be deemed disabled under the ADA, see Instructions for Field Offices: Analyzing ADA Charges after Supreme Court Decisions Addressing "Disability" and "Qualified," available on the EEOC website at http://www.eeoc.gov/policy/docs/field-ada.html.
4 Albertson’s, 527 U.S. at 565-66.
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