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Published online by Cambridge University Press: 24 February 2021
The Americans with Disabilities Act of 1990 promised to be a “secondgeneration” civil rights statute, comparable in importance and scope to the Civil Rights Act of 1964. The breadth of the act reflected congressional and disability activists' desire to change society in order to enable the disabled to achieve economic autonomy and social equality. Historically, disabled individuals were characterized by their inability to normally function in society, either due to physical obstacles or social myths and stereotypes. Up until 1990, the federal government had taken baby steps to address these issues. Indeed, most federal activity was limited to assisting disabled people in overcoming physical barriers to employment. However, the government did little to change the structure of those barriers, and most certainly did not address the widespread social prejudice against the disabled.
1 Pub L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12101-12213 (1994); 47 U.S.C. §§ 225, 711 (1994)) [hereinafter ADA].
2 See 1 Henry H. Perritt, Jr., Americans With Disabilities Handbook 2 (3d ed. 1997)(saying the employment title of the ADA “is the most significant labor and employment legislation in a decade). For an in-depth analysis of the history of the ADA, see Burgdorf, Robert L., Jr., The Americans With Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 Harv. C.R.-C.L. L. Rev. 413 (1991)Google Scholar.
3 See, e.g., 42 U.S.C. § 12101(a)(8)(“The Nation's proper goals regarding individuals with disabilities are to ensure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”); Feldblum, Chai R., Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab. L. 91, 94-102, 126-34 (2000)Google Scholar; Wendy Parmet, Plain Meaning and Mitigating Measures: Judicial Interpretations of the Meaning of Disability, 21 Berkeley J. Of Emp. & Lab. Law 53, 53-61 (same) [hereinafter Plain Meaning]; Burgdorf, supra note 2, at 415-34 (noting influences behind the ADA'S enactment).
4 See, e.g., Feldblum, supra note 3, at 94-97; Parmet, Plain Meaning, supra note 3, at 56-57.
5 See Parmet, Plain Meaning, supra note 3, at 57-58. The Architectural Barriers Act of 1968, 42 U.S.C. §§ 4151-4157 (1994) is one exception, requiring all buildings constructed, leased, or financed by or on behalf of the United States after August 12, 1968, to be structurally accessible to the physically handicapped.
6 29 U.S.C. § 794 (1994 & Supp. I 2000) [hereinafter Rehabilitation Act]. The year following the act's passage, the definition was amended to its present form.
7 See Title I, 42 U.S.C §§12111-12117 (1994).
8 See Title II, 42 U.S.C. §§ 12131-12165 (1994).
9 See Title III, 42 U.S.C. §§ 12181-12189 (1994).
10 See id. at § 12112(5).
11 See, e.g., Parmet, Plain Meaning, supra note 3, at 56-61.
12 See 42 U.S.C. § 12101(a)(7) (Individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotyping assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society).
13 See Parmet, Plain Meaning, supra note 3, at 56-61; Feldblum, supra note 3, at 91-93, 126— 131.
14 See Feldblum, supra note 3, at 137.
15 See Parmet, Plain Meaning, supra note 3, at 56-61, 67-70; Feldblum, supra note 3, at 91 93, 106-119.
16 See Parmet, Plain Meaning, supra note 3, at 67-70.
17 See Cary LaCheen, Achy Breaky Pelvis, Lumber Lung and Juggler's Despair: The Portrayal of the Americans with Disabilities Act on Television and Radio, 21 Berkeley J. Emp. & Lab. L. 223, 223-238 (2000) (chronicling the extensive negative media coverage of the ADA); Ruth Colker, The Americans With Disabilities Act: A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 99-100 (1999). Colker explains that this popular conception of the ADA is largely incorrect since defendants win more than 93% of ADA cases at trial and 84% of appeals. Id. at 100. The article explores two reasons why ADA outcomes are overwhelmingly pro-defendant: courts misuse summary judgment in disposing of cases in which fact questions remain and fail to give the proper deference to the Equal Employment Opportunity Commission (EEOC) regulations. Id. at 101-102.
18 See Colker, supra note 17, at 100-102.
19 527 U.S. 471,475(1999).
20 527 U.S. 516, 521 (1999).
21 527 U.S. 555, 556 (1999).
22 See Sutton, 527 U.S. at 475; Murphy, 527 U.S. at 519; Albertsons, 527 U.S. at 565-66.
23 See infra Parts H(B)-(D).
24 For the sake of simplicity, this Note refers to Sutton, Murphy, and Albertsons as “the Sutton decisions” or “the Sutton cases” since Sutton was the lead opinion.
25 One commentator argues that a proper reading of the Sutton opinions would result in little disturbance in ADA protection. See Lauren J. McGarity, Note, Disabling Corrections and Correctable Disabilities: Why Side Effects Might Be the Saving Grace of Sutton, 109 Yale L.J. 1161, 1161-64 (2000). Because one of the Sutton Court's main justifications for its decision was that viewing plaintiffs in their mitigated state was the only way courts could take into account “any negative side effects suffered by an individual resulting from the use of mitigating measures,” McGarity argues, the Court has opened the door for other courts to recognize and protect the large group of plaintiffs with “disabling corrections.” See id. at 1161-64. Unfortunately courts thus far have not followed this approach. See id.
26 See Feldblum, supra note 3, at 129.
27 See infra Part IV (B)(1).
28 See, e.g., Christiana M. Ajalat, Note: Is HIV Really a “Disability"?: The Scope of the Americans with Disabilities Act after Bragdon v. Abbott, 22 Harv. J.L. & Pub. Pol'Y 751 (1999) (questioning Bragdon).
29 See Thomas H. Maugh II, New Class of Anti-HIV Drugs Shows Promise, Los Angeles Times, Feb. 1, 2000, at A-l (discussing entry inhibitors, the latest HIV treatment); Steven G. Deeks, et al., HIV-l Protease Inhibitors: A Review for Clinicians, 111 Jama 145, 152 (1997).
30 See Wendy E. Parmet & Daniel J. Jackson, No Longer Disabled: The Legal Impact of the Social Construction of HIV, 23 Am. J. Law & Med. 7, 7-9 (1997) [hereinafter No Longer Disabled].
31 See infra Part III(A).
32 See Parmet & Jackson, No Longer Disabled, supra note 30, at 9-10, 16-20.
33 See infra note 97 and accompanying text.
34 See, e.g., Maugh II, supra note 29; John Leland, The End of AIDS?, Newsweek, Dec. 2, 1996, at 64, 66.
35 See Parmet & Jackson, No Longer Disabled, supra note 30, at 39.
36 See Perritt, supra note 2 at 4. The principle difference between the statutes is that the Rehabilitation Act only covers the federal government, federal contractors, and entities which receive federal financial assistance. See id.; see also Parmet & Jackson, No Longer Disabled, supra note 30, at 21.
37 Congress explained that it used “disability” in the ADA instead of the term “handicap,” which was used in the Rehabilitation Act, because it wanted to update the terminology to what was preferred by disability rights groups. See H.R. Rep. No. 101-485, pt. 2, at 50 (1990) [hereinafter House Labor Report]; H.R. Rep. No. 101-485, pt. 3, at 26 (1990) [hereinafter House Judiciary Report].
38 42 U.S.C. § 12102(2); 29 U.S.C. § 706(8).
39 See 42 U.S.C. § 12201(a) (“Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 or the regulations issued by Federal agencies pursuant to such title.”); See Parmet & Jackson, No Longer Disabled supra note 30, at 22. Courts had widely accepted that HIV, either symptomatic or not, was a disability under the Rehabilitation Act. See id. at 14-20.
40 42 U.S.C. § 2000e (1994); see Parmet, Plain Meaning, supra note 3, at 56; Feldblum, supra note 3, at 101-02.
41 See Feldblum, supra note 3, at 101-02; 42 U.S.C. § 2000e-2(a).
42 See Feldblum, supra note 3, at 101-02.
43 See id.
44 See id.
45 See id. at 91.
46 See id. at 91-93, 126-29.
47 See id. at 92. President George Bush even highlighted the similarity between the ADA and the Rehabilitation Act as one of the ADA's strengths, and presumably, one of the reasons he signed the bill. See Statement by President George Bush Upon Signing S. 933, reprinted in 1990 U.S.C.C.A.N. 601, July 26, 1990 (“Fears that the ADA is too vague or too costly and will lead to an explosion of litigation are misplaced. The Administration worked closely with the Congress to ensure that, wherever possible, existing language and standards from the Rehabilitation Act were incorporated into the ADA. The Rehabilitation Act standards are already familiar to large segments of the private sector that are either Federal contractors or recipients of Federal funds. Because the Rehabilitation Act was enacted 17 years ago, there is already an extensive body of law interpreting the requirements of that Act.”).
48 See Feldblum, supra note 3, at 91-93, 101-02, 126-29.
49 See id.
50 See id.
51 See id.
52 School Board of Nassau Cty. v. Arline, 480 U.S. 273 (1987).
53 See Feldblum, supra note 3, at 91-93, 101-02, 126-29.
54 See Parmet, Plain Meaning, supra note 3, at 70-81.
55 See 42 U.S.C. § 12101.
56 See42U.S.C. § 12101(a).
57 See42U.S.C. § 12101(b). Section 12101(b) states that the purpose of the ADA is: (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination based day-to-day by people with disabilities. See id.
58 See 42 U.S.C. § 12102(2).
59 See Sutton, 527 U.S. at 475.
60 House Labor Report, supra note 37, at 52; S. Rep. No. 101-116, at 22 (1989) [hereinafter Senate Report]; see also Memorandum for Arthur B. Culvahouse, Jr., Justice Department Memorandum on Application of Rehabilitation Act's Section 504 to HIV Infected Persons, Daily Lab. Rep. (Bna) 195, at D-l (Oct. 7, 1988) [hereinafter DOJ Memorandum].
61 See House Labor Report, supra note 37, at 51; House Judiciary Report, supra note 37, at 28. The list of disabilities includes; orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, Hivvaids, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, and drug and alcohol addiction. Id.
62 See Parmet & Jackson, No Longer Disabled, supra note 30, at 21.
63 See id.
64 See id. (citing Senate Report, supra note 60, at 8 and House Labor Report, supra note 37, at 31). The House agreed with the Presidential Committee on the HIV Epidemic that major civil rights legislation was needed to ensure that “all persons with symptomatic and asymptomatic HIV infection [would] be clearly included as persons with disabilities.” See House Labor Report, supra note 37, at 31; Report of the Presidential Commission on the Immunodeficiency Virus Epidemic 119-21 (1988) (concluding that discrimination was deterring people from being tested for HIV and seeking treatment).
65 See Parmet & Jackson, No Longer Disabled, supra note 30, at 21. Other opponents expressed beliefs that the ADA went too far in expanding protection to people with HIV. Representative Chuck Douglas stated that the food handlers amendment to the ADA would force restaurants to “not even [be able to] transfer employees with HIV even though there was substantial public fear about the spread of HIV in food ….” See House Labor Report, supra note 37, at 93-94. The food handlers amendment only allowed employers to discharge employees with infectious diseases that posed the risk of transmission via food handlers, and HIV is not transmittable in food. See Parmet & Jackson, No Longer Disabled, supra note 30, at 21-22.
66 Both House and Senate intended “disability” to be analyzed in the same way as “handicap” under the Rehabilitation Act and Fair Housing Act by the Dept. of Health, Education and Welfare and Dept. of Housing and Urban Development regulations respectively. See Senate Report, supra note 60, at 21; House Labor Report, supra note 37, at 50; House Judiciary Report, supra note 37, at 27.
67 45 C.F.R. § 84.3G)(2)(i). Hew defined physical or mental impairment as: (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Id.
68 45 C.F.R. § 84.3(j)(2)(ii) “Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Id.
69 See Senate Report, supra note 60, at 22; House Labor Report, supra note 37, at 51; House Judiciary Report, supra note 37, at 28.
70 29 C.F.R. § 1630.2(h) (1998) (establishing an Eeoc definition identical to that of Hew); 28 C.F.R. § 41.31(b)(1) (1999) (using the Hew language for the DOJ definition, but also enumerating specific included conditions).
71 29 C.F.R. § 1630.2(i); 28 C.F.R. § 41.31(b)(2).
72 See 29 C.F.R. pt. 1630 App. at 347.
73 Id. The EEOC also defines “substantially limiting.” See 29 C.F.R. 1630.2(j).
74 See Dept. of Health and Human Services, Hhs Fact Sheet: Clinton Administration on HIV/AIDS,, June 5, 2000, at 1 http://www.hhs.gov/news/press/2000pres/20000605.html. [hereinafter HHS Fact Sheet].
75 See AIDS Treatment and Care: Who Cares?, H.R. No. 101-674, at 3 (1990), at 1990 Wl 188846 (Leg. Hist.).
76 See. e.g., Chalk v. United States Dist. Ct., 840 F.2d 701 (9th Cir. 1988); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. 111. 1988); Thomas v. Atascadero Unified Sch. Dist., 662 F. Supp. 376 (Cd. Cal. 1987); Local 1812, Am. Fed'n of Gov't Employees v. Dep't of State, 662 F. Supp. 50 (D.D.C 1987); Martinez v. School Bd., 675 F. Supp. 1574 (M.D. Fla. 1987); Ray v. School Dist., 666 F. Supp. 1524 (M.D. Fla. 1987).
77 School Board of Nassau Cty. v. Arline, 480 U.S. 273 (1987).
78 See Feldblum, supra note 3, at 116-118.
79 See Arline, 480 U.S. at 276.
80 Id. at 275. The Court was unable to rule on whether Arline was “otherwise qualified” for her teaching position due to the lack of evidence in the record about whether she posed a “direct threat” to the health and safety of her students and co-workers due to the contagiousness of tuberculosis and remanded the case. See id. at 287-89.
81 See id. at 281.
82 U.S.C § 706(8)(B)(i). Note that the ADA has the identical definition for “disability.” 42 U.S.C § 12102(A).
83 See Arline, 480 U.S. at 281; 29 U.S.C. § 706(8)(B)(ii).
84 Arline, 480 at 279.
85 See id. at 282-87.
86 See id. at 282, n.7.
87 See id.
88 Id. at 284.
89 See Feldblum, supra note 3, at 120-121.
90 See id.
91 The original DOJ interpretation of the Rehabilitation Act concluded that asymptomatic HIV was not included in the act. See Memorandum from Assistant Attorney General Cooper on Application of Section 504 of Rehabilitation Act to Persons with AIDS, Daily Lab. Rep. (BNA) 122, at D-l (June 25, 1986). This was the position the DOJ argued in Arline. See Arline, 480 U.S. at 282 n.7. After the court's decision, the DOJ reversed its position. See DOJ Memorandum, supra note 60, at Dl.
92 See supra note 6 and accompanying text.
93 Participating in legislative hearings on the ADA were Admiral Watkins, the former chairperson of the President's Commission on the Human Immunodeficiency Virus Epidemic, an HIV-positive activist, and Joseph Candre of the AIDS Advisory Board. See House Labor Report, supra note 37, at 25. The Task Force on the Rights and Empowerment of Americans with Disabilities, established by the House Subcommittee on Select Education as a fact-gathering mechanism, included David Bodenstein of the National Association of People with AIDS. See id. at 27.
94 See Feldblum, supra note 3, at 91, n.l.
95 See Parmet & Jackson, No Longer Disabled, supra note 30, at 16-20.
96 See id.
97 See, e.g., Ray, 666 F. Supp. at 1529 (characterizing HIV as a “fire out of control [that] is indiscriminate in its destructiveness; whatever is in its path is subject to the onslaught … while we wait for medical science to save us from what many [believed to be] a raging, indiscriminate inferno, it is the task of this court to deal with the here and now of this lethal, inevitably fatal disease…”); Martinez, 675 F. Supp. at 1578 (expressing concern that “the mystery of the [HIV] virus and its communicability challenges jurists legally to be assured our decisions do not lead us to allow proliferation of this disease by our ignorance.”).
98 See Parmet & Jackson, No Longer Disabled, supra note 30, at 27-29.
99 See, e.g., Maugh, supra note 29; Lawrence K. Altman, With AIDS Advance, More Disappointment, N.Y. Times, Jan. 19, 1997, at Al; Steven G. Deeks, et al., HIV-I Protease Inhibitors: A Review for Clinicians, 277 Jama 145, 145 (1997); John Leland, The End of AIDS?, Newsweek, Dec. 2, 1996, at 64, 64. Of course, these drugs do not work in everyone, have significant side effects and complicated regimens. See Altman, supra; Maugh, supra note 29; Elizabeth Kastor, The New 'Miracle' AIDS Drugs: A Dose of Hope and Hard Reality, Wash. Post, Sept. 5, 1996; National Institutes of Health, New Model Suggests That AIDS Drugs May Not Abolish HIV Infection, (1999) (last visited Mar. 15, 2001), available at http://www.nih.gov/news/pr/oct99/niaid-06a.htm [hereinafter NIH] (revealing new research showing that antiretroviral treatment drives HIV down to stable, sometimes undetectable, levels, but may never completely destroy the virus). AIDS drugs are also prohibitively expensive. See Deeks, supra at 151 (noting that the annual cost of combination therapy plus the necessary monitoring is over $10,000 per year, and this is assuming no major toxic reaction); Center for AIDS Prevention Studies, Do New HIV Drugs Affect HIV Prevention, (last visited Mar. 15, 2001), available at http://www.caps.ucsf.edu/newdrugs.html (stating combination therapy can cost up to $15,000 per year) [hereinafter Center for AIDS Prevention Studies].
100 From 1993 to 1999, the number of people living with AIDS has increased from 174,475 to 320,282. See National Center for HIV, Std and Tb Prevention, Divisions of HIV/AIDS Prevention, Centers for Disease Control and Prevention, http://www.cdc.gov/hiv/stats/hasrl201/table25.htm (last visited Apr. 13, 2001). An estimated 650,000 to 900,000 people are currently living with HIV infection that has not developed into AIDS. See Centers for Disease Control and Prevention, Trends in the HIV & AIDS Epidemic 3 (1998), available at http://www.cdc.gov/hiv/stats/trends98.pdf.
101 See, e.g., Carl T. Hall, Decline Slows In Rate of AIDS Deaths, S.F. Chron., Aug. 31, 1999, at Al. The Centers for Disease Control and Prevention counted 17,047 deaths from AIDS in 1998, down 20 percent from 1997. Id. In 1999, death rates decreased only to 16,273, suggesting that they may be leveling off. See National Center for HIV, STD and TB Prevention, Divisions of HIV/AIDS Prevention, Centers for Disease Control and Prevention, http://www.cdc.gov/hiv/stats/hasrl201/table26.htm (last modified Apr. 13, 2001). Public health officials have become concerned that the decrease in death rates has slowed, and that infection rates seem to be slowly rising, particularly in young gay men and minorities. See Hall, at Al.
102 See, e.g., Tomas J. Philipson & Richard A Posner, Private Choices and Public Health: The Aids Epidemic in an Economic Perspective 31 (1993) (“The AIDS epidemic is primarily... the consequence of voluntary decisions….”).
103 See HHS Fact Sheet, supra note 74, at 4.
104 See Parmet & Jackson, No Longer Disabled, supra note 30, at 29 n.190. Currently, experts are worried that the scientific success in fighting HIV has caused complacency among gay men, resulting in less vigilance in safer sex practices. See Hall, supra note 101, at Al. This complacency may be contributing to the static rates of new HIV infection at 40,000 a year in the U.S. See id. There are some early signs, as well, that infection rates may be increasing in gay men. See id.
105 See Parmet & Jackson, No Longer Disabled, supra note 30, at 29 (quoting the National Research Council, AIDS: The Second Decade 292 (1990) report that AIDS was “what happened to those who lived foolishly” and that science had reduced the spread of the disease to “innocent victims”).
106 Many of the early AIDS cases dealt with children being denied access to school. See supra note 76 and accompanying text. Children were obviously easily characterized as innocent victims since they contracted AIDS largely through tainted blood transfusions, thus had no personal blame for their infection. Also, infection due to a tainted blood transfusion reinforced the social construction of AIDS as being a deadly threat to everyone since one could be infected without engaging in risky, and socially unacceptable, behavior.
107 See Parmet & Jackson, No Longer Disabled, supra note 30, at 28.
108 See id. at 9.
109 See id. at 28.
110 See id. at 10.
111 See id. at 29. Now, intravenous drug users and people of color are the fastest growing HIV infected populations. See id. HHS reported that AIDS remains the leading killer of Black males age 25-44 and that more than one-third of all AIDS cases are directly or indirectly attributable to substance abuse. See HHS Fact Sheet, supra note 74, at 4-5.
112 See Hall, supra note 101. National figures show half of the AIDS deaths in 1998 were among African-Americans. See id. Of the 40,000 new infections in 1998, 70% were in men and 50% of those men were Black, 30% White and 20% Latino. Id. Gay or bisexual sex was blamed in 60% of the male infections, 25% on intravenous drug use and 15% on heterosexual sex. Id. 64% of newly infected women were Black, 18% White and 19% Latino. Id. Heterosexual sex was attributed to 75% of the female infections and 25% on intravenous drug use. Id. An estimated 30% of Black gay men in urban areas are HIV infected. See Raja Mishra, Seeking a Haven From Isolation, Boston Globe, March 11, 2001, at A-l. If this group were considered a nation, it would have the second highest infection rate in the world. See id.
113 See id.
114 See Parmet & Jackson, No Longer Disabled, supra note 30, at 29-39.
115 U.S. 624 (1998). This is a Title III public accommodations ADA case in which Ms. Abbott, who was HIV-positive, was denied care by her dentist in his office. See id. at 628-29. The First Circuit granted Ms. Abbott summary judgment against Dr. Bragdon finding asymptomatic HIV was a disability under the ADA. See id. at 630.
116 Id. at 637.
117 Ma t 631-32.
118 Id. at 633-37.
119 Id. at 637.
120 Justice Kennedy does later acknowledge that the Court's “holding is confirmed by a consistent course of agency interpretation before and after the enactment of the ADA.” Id. at 642. Specifically he states that the DOJ regulations do not conflict with the Court's holding since they adopt “verbatim” the HEW definition of disability. Id. at 646. He also approved of the DOJ adding HIV to the representative list of disorders constituting a physical impairment. Id.; 28 C.F.R. § 36.104(l)(ii).
121 Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Chevron analysis of agency regulations first requires a finding that the statutory language is ambiguous or silent on the issue. See id. at 842-43. If so, then the Court examines whether there was an explicit or implicit intent by Congress to have the agency issue regulations on the subject. See id. at 843-44. If there is congressional intent to have an agency 'fill a gap,' then the question becomes whether the agency's regulations are arbitrary, capricious or manifestly contrary to the statute. See id. at 844.
122 Id. at 646. The Court acknowledged that the DOJ was “directed by Congress to issue implementing regulations [giving] technical assistance [in] explaining the responsibilities of covered individuals and institutions and to enforce Title III in court. Id. This direction appeared to the Court to include the authority to issue regulations interpreting the meaning of “disability,” just as the HEW was able to do under the Rehabilitation Act. See id. at 632. But see Sutton 527 U.S. at 479 (finding no agency was delegated authority to interpret “disability” in the ADA).
123 See Parmet, Plain Meaning, supra note 3, at 70.
124 See, e.g., Parmet, Plain Meaning, supra note 3, at 67-71; see generally William N. Eskridge, Jr., The New Textualism, 37 Ucla L. Rev. 621 (1990).
125 See Parmet, Plain Meaning, supra note 3, at 67.
126 See id.
127 See Arline, 480 U.S. at 281.
128 See Bragdon, 524 U.S. at 631-46.
129 Id. at 637.
130 Bragdon, 524 U.S. at 637.
131 See id. at 638. He concedes “it may seem or legalistic to circumscribe our discussion to the activity of reproduction. We have little doubt that had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities.” Id. at 637.
132 Id. at 638.
133 Id.
134 Id.
135 Id. at 638-39; 45 C.F.R. § 84.3G)(2)(ii) (1997); 28 C.F.R. § 41.31(b)(2) (1999).
136 See Bragdon, 524 U.S. at 656.
137 See id. at 633.
138 See id. at 639-40.
139 See id. at 639. This argument by Dr. Bragdon should also fail because it does not address the risk of infection to the woman's partner. However, in rejecting this argument the Court did not address the transmission risk to the partner.
140 Id. at 641. In reaching this conclusion, the Court stated it did not need to address the United States' argument that the eight percent figure was irrelevant because the regulatory language requires substantial limitations on major life activities be assessed without regard for mitigating measures. See id. at 640. Since the Court has overruled this agency interpretation in Sutton, it is unclear whether this argument is now available. The Court did say that as a matter of law the eight percent transmission risk was a substantial limitation. See id. If this risk could be lowered by better medication, a mitigating measure, then perhaps, in light of Sutton, a fact question exists concerning substantial limitation.
141 Id. at 641.
142 u.
143 id.
144 Justice O'Connor agreed with Rehnquist that reproduction is not a major life activity, but did not join that part of his opinion. See id. at 664-65. She only joined him in agreeing that remand was necessary to determine the direct threat issue. See id. Justices Scalia and Thomas joined Rehnquist's dissent in full. See id. at 657.
145 Id. at 657 (citing § 12102(2)(A) “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”) (emphasis added).
146 Id. at 659.
147 See Parmet & Jackson, No Longer Disabled, supra note 30, at 35. Possible plaintiffs include gay men, the biologically infertile, those who underwent sterilization procedures prior to learning of HIV status, post-menopausal women, or people who simply had no intention of having children. It is possible that some of these people could claim that they planned on adopting children, but changed those plans once they discovered their HIV status. But, there is very little authority on whether parenting is a major life activity. See id. at 35, n. 264; see also Michelle R. King & Beth S. Herr, The Consequences and Implications of a Case-By-Case Analysis Under the Americans with Disabilities Act for Asymptomatic HIV-Positive Gay Men and Lesbians Post Bragdon, 8 Law & Sex. 531, 546-49 (1998) (expressing concern that the ADA protection for asymptomatic HIV-positive gay men and lesbians is jeopardized by their likely inability to claim reproduction as a major life activity).
148 See Catherine J. Lanctot, Ad Hoc Decision Making and Per Se Prejudice: How Individualizing the Determination of “Disability” Undermines the ADA, 42 VlLl. L. Rev. 327, at 337-38(1997).
149 See Parmet & Jackson, No Longer Disabled, supra note 30, at 35 (discussing the First Circuit's decision in Bragdon).
150 U.S.C. § 12102(2)(B)(1990).
151 U.S.C. § 12102(2)(C)(1990).
152 527 U.S. 471(1999). Murphy v. UPS, 527 U.S. 516 (1999), dealt with a mechanic with severe hypertension who was fired from his job. See id. at 518. The Court quickly dismissed Murphy's claim that he was disabled under § 12102(2)(A) since his condition was controllable with medication. See id. at 521. The Court also dismissed Murphy's “regarded as” claim since he could not satisfy the Court's test for the major life activity of working articulated in Sutton. See id. at 521-22, 525. Albertsons, Inc. v. Kirkingburg> 527 U.S. 555 (1999), concerned a plaintiff with uncorrectable monocular vision who was hired as a truck-driver by the defendant in 1990. See id. at 558-59. At the time plaintiff was hired, defendant examined his eyesight and did not detect his impairment. See id. at 558. Two years later the defendant re-examined plaintiff, discovered the impairment and fired him. See id. 559-60. In addressing the question of plaintiffs protected class status, the Court expanded the scope of mitigating measures beyond mere devices and medications. Justice Souter noted the Ninth Circuit “acknowledged that Kirkingburg's brain has developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensates for his disability.” Id. at 565. Relying on Sutton, the Court stated that “[w]e 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.” Id. at 565-66.. This dicta could have alarming implications for individuals with a host of medically uncorrectable illnesses and conditions, especially learning disabilities.
153 See Sutton, 527 U.S. at 475. Each sister had uncorrected vision of 20/200 or worse in her right eye and 20/400 or worse in her left eye. See id. at 476.
154 Id. United required newly hired pilots to have uncorrected vision 20/100 or better. This requirement only applied to new hires. Pilots whose vision became impaired after they were hired were still considered qualified to fly. See Br. for Pet'r, 1997 U.S. Briefs 1943, *3-4, available at http://www.lexis.com.
155 Id.
156 Id.
157 The House Education and Labor Committee reported that: [wjhether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids. For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of the hearing aid.
Likewise, persons with impairments, such as epilepsy or diabetes, which substantially limits a major life activity are covered under the first prong of the definition of disability, even if the effects of the impairment are controlled by medication.
House Labor Report, supra note 37, at 52. The House Judiciary agreed, stating; “the impairment should be assessed without considering whether mitigating measures, such as auxiliary aids for reasonable accommodations, would result in a less-than-substantial limitation.” House Judiciary Report, supra note 37, at 28. The Report also gives the example of epilepsy and hearing loss, “even if the hearing loss is corrected by the use of a hearing aid.” Id. at 28-29.
The Senate Report also states that “whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids.” Senate Report, supra note 60, at 23. The Report explains further:
[An] important goal of the ["regarded as"] prong of the [disability] definition of is to ensure that persons with medical conditions that are under control, and therefore do not currently limit major life activities, are not discriminated against on the basis of their medical conditions. For example, individuals with control diabetes or epilepsy are often denied jobs for which they are qualified. Such denials are the result of negative attitudes and misinformation.
Id. at 24. See also Sutton, 527 U.S. at 499-501 (Stevens, J., dissenting).
158 29 C.F.R. pt. 1630, App. § 1630.2(j) (2000) (“the 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.”)
159 See 28 C.F.R. pt. 35, App. A, § 35.104 (2000) (interpretive guidance) (“The question of whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable modification or auxiliary aids and services.”); pt. 36, App. B, § 36.104 (stating the same).
160 See Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321, 329 (2dCir. 1998) (ADA plaintiffs' impairments viewed in the unmitigated state); Washington v. HCA Health Servs. of Texas, 152 F.3d 464, 470-471 (5th Cir. 1998) (same); Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 629-630 (7th Cir. 1998) (same); Arnold v. United Parcel Service, Inc., 136 F.3d 854, 859-866 (1st Cir. 1998) (same); Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 937-938 (3d Cir. 1997) (same); Doane v. Omaha, 115 F.3d 624, 627 (8th Cir. 1997) (same); Harris v. H & W Contracting Co., 102 F.3d 516, 520-521 (11th Cir. 1996) (same); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996) (same); But see Gilday v. Mecosta County, 124 F.3d 760, 766-768 (6th Cir. 1997) (expressing doubt about the majority rule); Sutton v. United Airlines, 130 F.3d 893, 902-03 (10th Cir. 1997) (mitigating measures considered in determining whether the disability substantially limits a major life activity).
161 See Sutton, 527 U.S. at 479.
162 Id. Section 12116 of the ADA states that the EEOC “shall issue regulations... to carry out this subchapter.” 42 U.S.C. § 12116. The Court states that this includes only the sections in Title I, §§12111-12117. See Sutton, 527 U.S. at 479. Justice Breyer's better view in his dissent argues that “the EEOC might elaborate through regulations the meaning of the term 'disability' if elaboration is needed in order to 'carry out' the substantive provisions of 'this subchapter.'” See id. at 514 (Breyer, J., dissenting). He notes that the term “disability” is used throughout Title I, so that the EEOC may issue regulations to clarify its meaning. See id. at 514-15.
163 See Sutton, 527 U.S. at 479. Neither party probably contested the validity of the regulations because no court had questioned the authority of the Eeoc, Doj, or Dept. of Transportation to interpret “disability.”
164 Id. at 480.
165 See id. at 482.
166 See supra Part II(B)-(C).
167 See supra Part 11(C).
168 See supra Part 11(C).
169 See supra notes 120-122 and accompanying text.
170 See Parmet, Plain Meaning, supra note 3, at 70-76.
171 See Sutton, 527 U.S. at 482. This holding is interesting given that there has been much commentary complaining about the vague or ambiguous terms in the ADA. See, e.g., Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability Under the Americans With Disabilities Act, 68 U. Colo. L. Rev. 107, 108 (1997); Peter David Blanck, Employment Integration, Economic Opportunity, and The Americans with Disabilities Act: Empirical Study from 1990-1993, 79 Iowa L. Rev. 853, 865 (1994).
172 See Sutton, 527 U.S. at 482.
173 Id.
174 See Parmet, Plain Meaning, supra note 3, at 82. Parmet criticizes the Court's use of textualism, especially since the ADA is silent on the subject to mitigating measures, as a method to enable conservative judges to restrict the scope of an act they personally and politically disagree with. See id. at 82.
175 Sutton, 527 U.S. at 482.
176 Id. at 482-83.
177 See id. at 483. The Court based this decision on two statutory provisions: § 12102(2) “with respect to the individual” and § 12102(2)(A) “major life activities of such individual.” See id.
178 Id.
179 See id.
180 Id. at 484.
181 See id.
182 See id. at 484-87.
183 See id. at 487.
184 See id. at 510; Brief for Resp't at *10, Sutton v. United Airlines, Inc. 527 U.S. 471 (1999) (No. 97-1943).
185 See, e.g., Locke, supra note 171, at 101; Colker, supra note 13, at 160.
186 See supra note 25 and accompanying text.
187 See Sutton, 527 U.S. at 488. “For example, individuals who use prosthetic limbs or wheelchairs may be mobile and capable of functioning in society but still be disabled because of a substantial limitation on their ability to walk or run. The same may be true of individuals who take medicine to lessen the symptoms of an impairment so that they can function but nevertheless remain substantially limited.” Id.
188 See supra note 99 and accompanying text.
189 See Sutton, 527 U.S. at 488. However, the Court's formulation of the “regarded as” prong is also problematic. See discussion infra at Part IV (A)(3).
190 See Sutton, 527 U.S. at 484.
191 See supra note 99 and accompanying text.
192 See Sutton, 527 U.S. at 494 (Ginsburg, J., concurring).
193 Id.
194 Id. at 485.
195 See supra Part II(B)-(C).
196 See Sutton 527 U.S. at 498-99 (Stevens, J., dissenting).
197 See, e.g., Center for Aids Prevention Studies, supra note 99, at 2.
198 See, e.g., Maugh, supra note 29, at Al (reporting that recent research shows that up to 40% of HIV positive people carry viruses resistant to the 14 AIDS drugs currently available); Richard A. Knox, Resistant AIDS Strains Seen Rising, Boston Globe, Feb. 5, 1999, at Al (reporting that estimates show 1 in 5 newly infected individuals carries a virus resistant to one of the three types of AIDS drugs, and 3% of newly infected individuals are resistant to all three types.)
199 See Knox, supra note 198 at Al (reporting an increase in reemergence of the HIV virus in long-treated infected individuals who had undetectable viral loads, showing that the virus can mutate resistance to AIDS drugs over time).
200 See Parmet, Plain Meaning, supra note 3 at 72.
201 See Sutton, 527 U.S. at 496-512 (Stevens, J., dissenting).
202 See id. at 496.
203 Fed. R. Civ. Pro. 12(b)(6).
204 See, e.g., Feldblum, supra note 3 at 160.
205 See Feldblum, supra note 3 at 153. The majority notes that more than 100 million people need corrective lenses. See Sutton, 527 U.S. at 487. At oral argument, one Justice asked plaintiffs counsel if he was disabled because he wore glasses. See id.
206 See infra Parts I and 11(A).
207 See infra Part 11(A).
208 See Feldblum, supra note 3, at 91.
209 See Sutton, 527 U.S. at 496 (Stevens, J., dissenting).
210 See id. at 494 (Ginsburg, J., concurring).
211 42 U.S.C. § 12111(8); See, e.g., Lanctot,.supra note 148, at 338.
212 But see Feldblum, supra note 3, at 153, 160-165 (contending that the ADA should include all people with impairments including those considered by society to be trivial); Parmet, supra note 3, at 83-85 (discussing how the social understanding of disability implies helplessness, dependency and “otherness,” making it difficult to expand the concept to include common impairments).
213 See, e.g., Feldblum, supra note 3, at 126-34.
214 See 42 U.S.C. § 12102(2)(C).
215 See Sutton, 527 U.S. at 489. The Court only articulated two “apparent ways” to come within § 12102 (2)(C); 1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or 2) a covered entity mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities. Id. Interestingly, the Court did not cite the EEOC for this idea, even though the EEOC has regulated a very similar definition. See id.; see 29 C.F.R. §§ 1630.2(1)(1), (3) (2000). The Court also ignored the third way to come within “regarded as” as defined by the EEOC; that an individual “has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment.” 29 C.F.R. § 1630.2(1)(2). This third definition codifies the idea that a covered entity's perception alone can substantially limit a major life activity, and this perception, based on prejudice, should be the focus of the “regarded as” inquiry. See Lanctot, supra note 148, at 337-38; Locke, supra note 171, at 141-45; Arlene B. Mayerson, Restoring Regard for the “Regarded As ” Prong: Giving Effect to Congressional Intent, 42 VlLl. L. Rev. 587, 592 (1997).
216 See Sutton, 527 U.S. at 489 (citing 42 U.S.C. § 12101(7), Arline, 480 U.S. at 284, and 29 C.F.R. pt. 1630, App. § 1630.2(1)) (2000).
217 See Sutton, 527 U.S. at 490.
218 The EEOC defines “working” as requiring “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). The regulations also require a court consider: (A) the geographical area to which the individual has a reasonable access; (B) the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and\or (C) the job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes). See 29 C.F.R. § 1630.2(j)(3)(ii).
219 See Sutton, 527 U.S. at 492.
220 Id. at 491. The Court further stated, “one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills and (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.” Id. at 492.
221 See id. at 493-94.
222 See id. at 493. The Court even cited the EEOC's interpretive guidance, which said “an individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be a commercial airline co-pilot or a pilot for a courier service, would not be substantially limited in the major life activity of working.” See id. (citing 29 C.F.R. pt. 1630, App. § 1630.2).
223 See Arline, 480 U.S. at 284.
224 See 29 C.F.R. § 1630.2(h)(1998).
225 See Robert L. Burgdorf, Jr., “Substantially Limited” Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 409, 539-46, 573-74. (1997); see also infra Part V(B)(2).
226 See Burgdorf, supra note 225, at 570-71.
227 See Sutton, 527 U.S. at 492-93. “We note, however, that there may be some conceptual difficulty in defining “major life activities” to include work, for it seems “to argue in a circle to say that if one is excluded…by reason of [an impairment, from working with others]…then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap.” Id. at 492 (citing Tr. of Oral Arg. in Arline, 481 U.S. 1024 (1987), No. 85-1277, p.15 (argument of Solicitor General). It is interesting that the Court did not cite the Arline Court's reaction to the Solicitor General's confusion about the apparent circularity of the major life activity of “working” (an opinion which Justice O'Connor joined). This is because the Court had no difficulty in viewing working as a major life activity. See Arline, 480 U.S. at 283. Justice Brennan stated that “[t]he argument is not a circular, however, but direct. Congress plainly intended the Act to cover persons with a physical or mental impairment (whether actual, past, or perceived) that substantially limited one's ability to work. The primary goal of the Act is to increase employment of the handicapped.” Id. at n.10. The Sutton Court's action highlights the judicial hostility to “working” as a major life activity. See also Burgdorf, supra note 225, at 570-71; Perritt, supra note 2, at 80.
228 See Sutton, 527 U.S. at 491.
229 See id. at 491-93; 29 C.F.R. § 1630.2(j)(3)(i).
230 See, e.g., Sorensen v. University of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999) (found that the position of “flight nurse” was not a broad class of jobs, therefore defendant's refusal to return plaintiff to that position after her diagnosis of multiple sclerosis did not prove that defendant regarded plaintiff as substantially limited in working); Dickerson v. Ups, 1999 U.S. Dist. Lexis 16821 (N.D. Tex. Oct. 22, 1999) (found that plaintiffs back condition did not substantially limit his ability to work as a truck driver in part because plaintiff testified that he remained able to perform this job with without accommodation). But see Fjellestad v. Pizza Hut of America, 188 F.3d 944 (8th Cir. 1999) (found plaintiff substantially limited in working because work restrictions prevented plaintiff from working in restaurant management).
231 See, e.g., Haiman v. Village of Fox Lake, 55 F. Supp. 2d 886, 893 (N.D. 111. 1999) (finding that a plaintiffs continuous employment in a similar position at another company was evidence which “directly contradicts [plaintiffs] claim of actual disability”).
232 See id.
233 See, e.g., Burgdorf, supra note 225, at 539-46, 573-74.
234 See id.
235 See Arnold v. City of Appleton, 97 F. Supp. 2d 937 (E.D. Wis. 2000); Moreno v. American Ingredients Company, 2000 U.S. Dist. Lexis 5919, 2000 Wl 527808 (D. Kan. April 7, 2000); Popko v. Pennsylvania State Univ., 84 F. Supp. 2d 589 (M.D. Pa. 2000); Treglia v. Town of Manlius, 68 F. Supp. 2d 153 (N.D.N.Y. 1999); Todd v. Academy Corp., 57 F. Supp. 2d 448 (S.D. Tex. 1999); But see Otting v. J.C. Penney Co., 223 F.3d 704, 710-11 (8th Cir. 2000) (holding that plaintiff with persistent seizures, two to three times a month, despite medication and brain surgery was disabled); Rowles v. Automated Production Systems, Inc., 92 F. Supp. 2d 424 (M. D. Pa. 2000) (finding epileptic claimant disabled even though seizures were under control medically, because precautions undertaken by the claimant and the effect of infrequent seizures substantially limited several major life activities).
236 See Spades v. City of Walnut Ridge, 186 F.3d 897, 900 (8th Cir. 1999) (finding that medication and counseling enabled plaintiffs functioning without limitation); Robb v. Horizon Credit Union, 66 F. Supp. 2d 913, 918 (Cd. 111.1999) (finding that as long as plaintiff continued taking medication she was not substantially limited in any major life activities).
237 See Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) (finding deficiency in claim that breathing impairment was a disability under the ADA because of corrective measures taken by plaintiff).
238 See Pacella v. Tufts University Sch. of Dental Medicine, 66 F. Supp. 2d 234, 238 (D. Mass. 1999).
239 See Haiman v. Village of Fox Lake, 55 F. Supp. 2d 886, 893 (N.D. 111. 1999).
240 See Phillips v. Wal Mart, 78 F. Supp. 2d 1274, 1288 (S.D. Ala. 1999).
241 See Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 955 ( 7th Cir. 2000).
242 See Thalos v. Dillon Companies, Inc., 86 F. Supp. 2d 1079, 1087 (D. Colo. 2000) (granting defendant's summary judgment in part and denying in part).
243 See Broussard v. Univ. of Cal., Berkeley, 192 F.3d 1252 (9th Cir. 1999).
244 See Nawrot v. CPC IntM, 2000 U.S. Dist. Lexis 8973, *16-17 (N.D. 111. 2000).
245 See Frazier v. Simmons, 90 F. Supp. 2d 1221, 1225 (D. Kan. 2000).
246 184 F.3d 296 (3d Cir. 1999).
247 See id. at 302.
248 See id. at 303-04.
249 The court accepted thinking as a major life activity within the ADA saying “we hardly need to point out that thinking is inescapably central to anyone's life.” Id. at 307. It is noteworthy that Taylor did not rely upon working as a major life activity. In fact, prior to Sutton, Taylor apparently relied upon Arline's holding that hospitalization can establish a record of significant restrictions in many major life activities. See id.; Arline, 480 U.S. at 281. After Sutton, Taylor submitted a supplemental brief shifting emphasis on her ability to think as the major life activity substantially limited by her lithium treatment. See Taylor, 186 F.3d at 307. This shift in strategy may have contributed to the success of her claim because it avoided the “conceptual difficulties” that the Supreme Court and other courts have struggled with when analyzing working. See Sutton, 527 U.S. at 492.
250 See, e.g., John O'Neil, For HIV, A Troublemaker in a Cocktail, N. Y. Times, Jan. 11, 2000, § F, at 8 (reporting high rates of liver damage due to HIV medications); Rosie Mestel, As New Drugs Normalize and Lengthen the Lives of People Who Have HIV and AIDS, Nutrition Becomes a Crucial Part of the Battle, L.A. Times, Dec. 20, 1999, Health Section, at 1 (describing side effects and strict dietary requirements of medications).
251 See Taylor, 184F.3d296, 309 (3d Cir. 1999).
252 See Adam C. Wit, Sutton and Murphy: What It Means to Be Disabled under the ADA, Employee Rel. L.J. 41, 53-54 (Winter 1999).
253 See Broussard v. Univ. of Cal., Berkeley, 192 F.3d 1252, 1256 n.2 (9th Cir. 1999) (“As in Sutton, the parties to this action accept these regulations as valid, so we need not decide what level of deference is due.”); McAlindin v. City San Diego, 192 F.3d 1226, 1233 n.6 (9th Cir. 1999) (same); Taylor v. Phoenixville, 188 F.3d 296, 307 (3d Cir. 1999) (same); Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1088 n.l (same). The Second Circuit stated that they will continue to give “great deference” to the EEOC “until a more definite pronouncement [from the Court] is forthcoming.” Muller v. Costello, 187 F.3d 298, 312 n.5 (2d Cir. 1999).
254 See, e.g., Colker, supra note 17, at 126-33; Lanctot, supra note 148, at 340 (speculating that Supreme Court intervention or a statutory amendment may be necessary in order to correct the misinterpretations of the ADA).
255 See Bonnie P. Tucker, The Americans with Disabilities Act: An Overview, 1989 U. Ill. L. Rev. 923, 923 (quoting Senator Harkin, one of the ADA's chief sponsors).
256 See 29 C.F.R. § 1630.2(j)(3)(i) (defining substantially limited in the major life activity of working as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”).
257 See Sutton, 527 U.S. at 491-93; see also supra Part IV (A)(3).
258 See, e.g., Locke, supra note 171, at 135-46.
259 See 29 C.F.R. pt. 1630, App., at 355.
260 See Sutton, 527 U.S. at 483.
261 See Feldblum, supra note 3, 163-64.
262 See id. at 164.
263 See Bragdon, 524 U.S. at 656 (Ginsburg, J., concurring).
264 The employer knows that two relevant statutes require providing employees time off for illnesses. See Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D) (2000); ADA, 42 U.S.C. § 12111(9)(B) (2000) (reasonable accomodations include part-time work schedules and time-off); 42 U.S.C. § 12112(5)(A) (requiring employers to make reasonable accomodations to disabled employees).
265 If the employer self-funds their health insurance, then this creates another incentive to terminate sick employees.
266 Lanctot, supra note 148, at 337 (citations omitted).