Rulings Emphasize Need for Preventative Anti-Discrimination Measures.

Recently, the U.S. Supreme Court answered a question that had been troubling numerous lower courts: Should corrective or mitigating measures be considered in determining whether a person is disabled under the Americans with Disabilities Act (ADA)? In Sutton v. United Air Lines, Inc., and two companion cases, the Supreme Court said "yes."

In each case, the Supreme Court held that the determination of whether a person is disabled under the ADA should be made while considering measures that mitigate that person's condition. In Sutton, the Court ruled that two women, who were rejected as global airline pilots because they did not meet the airline's requirements for uncorrected vision, were not disabled—within the meaning of the ADA—because they could mitigate their impairment with corrective lenses and thus were not "substantially limited" in any "major life activity."

In another important aspect of the case, the Court ruled that the plaintiffs had not been "regarded as" having a substantially limiting condition by the airline, but rather only were regarded as being unable to work as global pilots. Thus, the airline had not considered the women to be disabled such that the women could show discrimination.

In Murphy v. United Parcel Service, Inc., the Supreme Court ruled that the mitigating effects of medication to correct a truck mechanic's high blood pressure (which did not meet federal standards) had to be considered in determining whether the mechanic was substantially limited in any major life activity. The Court also held that the mechanic had not been "regarded as" disabled by UPS.

Finally, in Albertson's, Inc. v. Kirkingburg, the Court held that self-correction of conditions (i.e., the person's body adapting to the condition) also must be considered in determining whether an employee is substantially limited in a major life activity. In this case, a truck driver who had an eye condition that left him with monocular vision—but who had adapted to the condition by self-correction—still had to demonstrate that he was substantially limited in a major life activity to be considered disabled.

On the same day it ruled in the three ADA cases, the Supreme Court in Kolstad v. American Dental Association held that plaintiffs in Title VII and ADA employment discrimination cases who seek punitive damages against an employer do not have to show that the employer acted in an "egregious" or outrageous manner. The Court held that the focus in such cases instead should be on the defendant's state of mind and whether the defendant acted with "malice" or "reckless indifference" with knowledge that it was violating federal law.

After setting this lesser standard for plaintiffs seeking punitive damages, however, the Court then qualified its decision by holding that an employer could not be found vicariously liable—in a punitive damages context—for actions taken by its managers where the actions were contrary to good faith efforts taken by the employer to comply with anti-discrimination laws. This ruling, by a narrow 5-4 margin, is consistent with the Court's decisions (1998) in sexual harassment cases that created an affirmative defense to vicarious liability charges where an employer makes good faith efforts to comply with Title VII requirements.

It is too early to say what the exact implications of these rulings will be for employers. Several issues should be considered, however, in dealing with applicants and employees with disabilities:

In ruling that corrective measures must be considered, the Court did not say that persons who have taken corrective measures to address disabling conditions automatically are excluded from ADA coverage. Thus, determining whether a person using a corrective measure is disabled may require an individualized evaluation of whether the person still is substantially limited by his or her "corrected" condition.

The need for a case-by-case analysis may prompt employers to use detailed procedures to determine whether a person using a corrective measure in fact is disabled under the ADA. While reducing the potential number of persons who may claim to be disabled because of a particular condition or who may seek an accommodation for a disability, this requirement actually may increase the burden of an employer in evaluating each person who has corrected a particular condition.

The Court also ruled in both Sutton and Murphy that the plaintiffs were not "regarded as" being disabled by their employers. Employers should not overlook this part of the ADA test. A person may be able to correct a disabling condition so that he or she would not be considered disabled under the "actual" disability part of the test, but if the employer still "regards" the employee as disabled, an ADA charge may arise.

The decisions underscore the need for employers to take as many precautionary measures as possible to prevent and eliminate discrimination in the workplace, including:

• implementing and disseminating comprehensive anti-discrimination policies
• establishing effective complaint procedures
• conducting careful background screening and training of management and supervisory employees
• investigating and taking prompt remedial action in the event of complaints
• communicating to all levels of employees a "zero tolerance" for discriminatory acts.

For more information on these decisions and how they may affect your business, please contact William Joseph Austin, Jr., Albert R. Bell, Jr., S. McKinley Gray, III, or David L. Ward, Jr.

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