THE DEFINITION OF DISABILITY
AFTER SUTTON v. UNITED AIRLINES
© 2000 by Advocacy, Inc.

"[T]he Supreme Court last week further refined an answer to the academic question, 'What is a disability?' The Court said that if a disability can be corrected or mitigated, employers can conclude that an impairment does not amount to a 'substantial limitation.'

"This is something of a revelation. I have a job. I have a family. I travel all over the world. By this definition the fact that I use a wheelchair to mitigate my paraplegia suggests that I am not disabled.

"Someone should tell the doctors working on a cure for spinal cord injury they are wasting their time. The Supreme Court just beat them to it."

-- John Hockenberry, in op-ed column in The New York Times, June 29, 1999

Presented at the National AT conf2002erence:
"Bridges to Better Advocacy"

Co-sponsored by:
Advocacy, Inc., Austin, Texas, and
The National Assistive Technology Advocacy Project,
A Project of Neighborhood Legal Services, Inc.

April 8, 2000
Austin, Texas

By Brian East*
Advocacy, Inc.
7800 Shoal Creek Blvd., Ste. 171-E
Austin, Texas 78757-1024
512/454-4816
email: beast@advocacyinc.org

Brian East is a 1977 graduate of the University of Texas School of Law. He has been in private practice in Austin, Texas since 1982, and since 1989 has concentrated his practice in employment and civil rights law. He still maintains a very small private practice, but now works part-time for Advocacy, Inc., the Texas "protection & advocacy system" for persons with disabilities. He is a Senior Attorney in their Legal Services Unit, and provides technical assistance and representation to persons with disabilities in a variety of areas, including employment matters. He is also co-author of the chapter on "Workers with Disabilities" in the Employee & Union Member Guide to Labor Law (West Group 1999).

* With generous assistance from Claudia Center, Cordelia Martinez, Vivian Rice, and Maryann Overath.

TABLE OF CONTENTS

I. Introduction -- The ADA's Promise

II. The Supreme Court's Mitigating Measures Cases

III. Avoiding the Effects of Sutton -- A Step-By-Step Approach

A. Actual Disabilities

1. Identify all of the client's impairments
2. Determine if the impairments were known to the employer
3. List every major life activity that could possibly be affected by the impairment
4. List all mitigating measures used
5. Even with the mitigating measures used, detail how each major life activity is affected
6. List any side effects of the mitigating measures, or how they otherwise affect major life activities
7. Consider whether the limitations are substantial
8. Consider separately whether the limitations on working are substantial
9. If no single condition or side effect is substantially limiting, consider whether they are in combination
10. Determine if you have expert support, and if there are Daubert issues

B. Record of a disability

1. Determine if the client has a record of a past impairment
2. If so, determine if the records reflect a substantial limitation
3. Determine if the employer was aware of the record

C. Perceived Disability

1. Determine if the employer incorrectly believed that the client had a condition or impairment that he/she did not have
2. If so, determine if the supposed impairment would substantially limit any major life activity
3. If so, determine if the employer believed that the supposed impairment substantially limited any major life activity
4. Determine if the employer believed that the client's condition or impairment was substantially limiting, when it was not
5. Determine if the client has a condition or impairment that was substantially limiting because of the attitude of others
6. Determine if the employer offered the client another job, or indicated that there were other jobs that the client could do

D. State Law

IV. "Qualified" Individual

V. Conclusion

Table of Authorities

I.   Introduction -- The ADA's Promise

        In 1990, Congress found that discrimination against the more than 43,000,000 Americans with disabilities was a serious and pervasive social problem that persisted in the critical area of employment.⁽¹⁾ Congress also found that this discrimination not only severely disadvantaged individuals vocationally and economically, but also cost the country billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.⁽²⁾

        In response to those findings, Congress passed and President Bush signed the Americans with Disabilities Act (ADA).⁽³⁾ The ADA was the world's first comprehensive civil rights law for people with disabilities, and represented America's commitment to full participation and access for all its citizens.⁽⁴⁾ The expressed purpose of the ADA is: "(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;" and "(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities."⁽⁵⁾ In the words of President Bush, it was intended to "let the shameful walls of exclusion finally come tumbling down."⁽⁶⁾
0

        Unfortunately, the restrictive interpretations of the ADA by some courts thwart the statute's promise. The three "mitigating measures" cases recently decided by the Supreme Court are examples of such interpretations.⁽⁷⁾

II.   The Supreme Court's Mitigating Measures Cases

        In Sutton v. United Air Lines,⁽⁸⁾ the Court held, contrary to the ADA's legislative history,⁽⁹⁾ the EEOC's interpretive guidance,⁽¹⁰⁾ and numerous lower court decisions, that the mitigating measures used by an employee must be taken into account in judging whether an individual has a disability under the ADA. The Court therefore found that the plaintiffs, applicants for jobs as airline pilots with uncorrected vision of 20/200, did not properly allege that they have an impairment that "substantially limits" the major life activity of working. In Murphy v. United Parcel Service,⁽¹¹⁾ a similar case decided the same day, the Court upheld the plaintiff's termination because, in its medicated state, Murphy's hypertension was controlled, and Murphy functioned normally in everyday activities, and thus he was not a person with a disability under the ADA.

        The central holding of Sutton is that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment."⁽¹²⁾ The Court's holding was based on the following:

• the ADA's definition of disability as an impairment that "substantially limits" a major life activity uses the "present indicative verb form," and does not speak in terms like "might," "could," or "would;"
  
• judging people in their uncorrected or unmitigated state would be contrary to the ADA's requirement of an individual assessment, because it would require speculation about a person's condition without the mitigating measures, and would thus have to be based on generalized information;
  
• judging people in their uncorrected or unmitigated state could mean that negative side effects from mitigating measures may not be considered, leading to an unfair result;
  
• "[f]inally, and critically," Congress' finding that there are "some 43,000,000 Americans" with disabilities was based on studies⁽¹³⁾ reflecting functional impairments of persons even when using special aids, and would have been a much larger number if corrected impairments were included.

        Since none of the plaintiffs in Sutton and Murphy had any limitations⁽¹⁴⁾ when using mitigating measures (eyeglasses in Sutton; medication in Murphy), they were not persons with disabilities. These cases are a good example of "bad facts" making "bad law." The alleged disabilities are extremely widespread and easily treated.

        In Albertsons, Inc. v. Kirkingburg,⁽¹⁵⁾ a commercial truck driver with monocular vision was terminated because he failed to maintain his federal commercial driver's certification. The holding in this case is actually a very limited one. Employers who require their employees to meet an applicable federal safety regulation do not have to "justify" enforcing the regulation⁽¹⁶⁾ solely because its standard may be waived in an individual case under an experimental⁽¹⁷⁾ waiver program.⁽¹⁸⁾ In its decision, however, the Court stated that the assessment of whether an impairment substantially limits a major life activity must also take into account the individual's developed ability to compensate or cope with the impairment. Mitigating measures, then, include not just medication and devices, but the body's own ability to compensate.⁽¹⁹⁾ In cases involving monocular vision, for example, this means that courts should consider the brain's subconscious adjustments to the manner in which a person senses depth and perceived peripheral objects, though in most such cases, a person would still have a disability.⁽²⁰⁾

        The Supreme Court has therefore held that an employee's mitigating measures must be taken into account in judging whether an individual has a disability under the ADA. It is also clear that such measures may include medication,⁽²¹⁾ assistive devices (like eyeglasses),⁽²²⁾ and even internal coping mechanisms that the employee's body has developed.⁽²³⁾

        These rulings may have unfair and illogical results. For example, a person with a lifelong, but "mitigated," disease or impairment (e.g., insulin-controlled diabetes) may no longer be protected by the ADA, while a person who once had tuberculosis, but is now cured, is covered. Furthermore, an employee who requests accommodations necessary to mitigate a disability may be in a Catch-22. The worker with diabetes, for example, who is refused the work breaks necessary to monitor her blood sugar and inject insulin may be forced to quit her job with no recourse, since her use of insulin may mean that she is not a person with a disability.

        It remains to be seen how the Courts will resolve these issues. For now, perhaps the most important lesson is the Court's support for an individualized approach to the assessment of coverage under the ADA. Whether an individual can bring a claim under the ADA must be assessed on a case-by-case basis.⁽²⁴⁾ These decisions also send a strong message that blanket exclusions are not permitted.⁽²⁵⁾

III.   Avoiding the Effects of Sutton -- A Step-By-Step Approach

        The ADA and the Rehabilitation Act protect persons with a disability, defined as follows: (1) a person with a physical or mental impairment that substantially limits one or more major life activities (referred to below as an "actual disability"); (2) a person with a record of such an impairment; or (3) a person who is regarded as having such an impairment.⁽²⁶⁾ Each of these prongs will be discussed below. Though the class of persons protected by the ADA has been narrowed by the Court's interpretation in Sutton,⁽²⁷⁾ it is still possible to prevail. Diagnoses or labels will rarely determine whether someone has a disability.⁽²⁸⁾ Consider instead analyzing a case using the steps set out below.⁽²⁹⁾

A. Actual Disabilities

1. Identify all of the client's impairments.

        The term "impairment" is defined in the regulations,⁽³⁰⁾ and since it is a broad term,⁽³¹⁾ advocates should consider every diagnosis or condition that the client has.

2. Determine if the impairments were known to the employer.

        Courts have repeatedly held that the employer must be aware of the plaintiff's disability in order for the ADA protections to apply.⁽³²⁾ Knowledge of the complete medical diagnosis should not be required, however. It should be sufficient if the employee informs the employer of the employee's limitations.⁽³³⁾ It should also be sufficient if someone else informs the employer on the employee's behalf.⁽³⁴⁾ Furthermore, informing the employee's supervisor is sufficient notice to the employer.⁽³⁵⁾

3. List every major life activity that could possibly be affected by the impairment.

        Although the statute does not define "major life activity," Supreme Court precedent supports an expansive list of major life activities.⁽³⁶⁾ Major life activities are not limited to those aspects of a person's life that have a public, economic, or daily character,⁽³⁷⁾ or to those things which everyone experiences.⁽³⁸⁾ Nor does the disability definition "turn on personal choice."⁽³⁹⁾

        The word "major" simply denotes comparative importance, and suggests that the touchstone for determining whether something is a major life activity is its significance.⁽⁴⁰⁾ The Fifth Circuit has looked at such factors as whether the activity is necessary for self-sustenance or to support a family, provides the opportunity for self-expression and for contribution to productive society, involves some degree of social interaction, is an important element of how individuals define themselves and are perceived by others, or provides an opportunity for many of the significant experiences of life.⁽⁴¹⁾

        There is authority holding that the following are major life activities: caring for oneself,⁽⁴²⁾ bathing,⁽⁴³⁾ dressing,⁽⁴⁴⁾ toileting,⁽⁴⁵⁾ eating,⁽⁴⁶⁾ drinking,⁽⁴⁷⁾ cooking,⁽⁴⁸⁾ using stairs,⁽⁴⁹⁾ lifting,⁽⁵⁰⁾ carrying,⁽⁵¹⁾ getting around outside,⁽⁵²⁾ getting around inside,⁽⁵³⁾ getting into or out of bed,⁽⁵⁴⁾ attending school,⁽⁵⁵⁾ keeping house,⁽⁵⁶⁾ living independently,⁽⁵⁷⁾ performing manual tasks,⁽⁵⁸⁾ walking,⁽⁵⁹⁾ running, ⁽⁶⁰⁾ seeing,⁽⁶¹⁾ hearing,⁽⁶²⁾ speaking,⁽⁶³⁾ breathing,⁽⁶⁴⁾ working,⁽⁶⁵⁾ sitting,⁽⁶⁶⁾ standing,⁽⁶⁷⁾ reaching,⁽⁶⁸⁾ reproducing or bearing children,⁽⁶⁹⁾ sexual activities,⁽⁷⁰⁾ sleeping,⁽⁷¹⁾ controlling bowels,⁽⁷²⁾ waste elimination,⁽⁷³⁾ and mental and emotional processes such as reading,⁽⁷⁴⁾ writing,⁽⁷⁵⁾ thinking,⁽⁷⁶⁾ learning,⁽⁷⁷⁾ concentrating,⁽⁷⁸⁾ and interacting with others.⁽⁷⁹⁾

Abbasi v. Herzfeld & Rubin, P.C., 1995 U.S. Dist. LEXIS 6629 (S.D. N.Y. 1995) 5

Adam v. Dickinson Place Charitable Corp., 1997 U.S. Dist. LEXIS 4793 (N.D. Tex.), aff'd, 119 F.3d 1 (5^th Cir., unpublished), cert. denied, 522 U.S. 916, 118 S. Ct. 302, 139 L. Ed. 2d 233 (1997) 17

Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 144 L. Ed. 2d 518, 531 (1999) 3, 4, 14, 16

Aldrich v. Boeing Co., 146 F.3d 1265 (10^th Cir. 1998) 18

Alsbrook v. City of Maumelle, Arkansas, 184 F.3d 999 (8th Cir. 1999, en banc), cert. granted sub nom Alsbrook v. Arkansas, ___ U.S. ___, 120 S. Ct. 1003 (2000), cert. dismissed, 2000 U.S. LEXIS 1736 (2000) 1

Amir v. St. Louis University, 184 F.3d 1017 (8^th Cir. 1999) 8, 11

Anderson v. Gus Mayer Boston Store of Delaware, 924 F. Supp. 763 (E.D. Tex. 1996) 6

Barnes v. Cochran, 944 F. Supp. 897 (S.D. Fla. 1996) 28

Barnett v. Revere Smelting & Refining Corp., 1999 U.S. Dist. LEXIS 16347 (S.D. N.Y. 1999) 20

Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2d Cir.1998), judgment vacated on other grounds, ___ U.S. ___, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999) 11

Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094 (S.D. N.Y. 1997), aff'd on other grounds, 156 F.3d 321 (2d Cir. 1998), judgment vacated on other grounds, ___ U.S. ___, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999) 11

Baulos v. Roadway Express, Inc., 139 F.3d 1147 (7^th Cir. 1998) 27

Belk v. Southwestern Bell, 194 F.3d 946 (8th Cir. 1999) 16

Bercovitch v. Baldwin School, Inc., 133 F.3d 141 (1^st Cir. 1998) 11

Berk v. Bates Advertising USA, Inc., 25 F. Supp. 2d 265 (S.D. N.Y. 1998)

Best v. Shell Oil Co., 107 F.3d 544 (7^th Cir. 1997) 28

Blanton v. Winston Printing Co., 868 F. Supp. 804 (M.D. N.C. 1994) 18

Bingham v. Oregon School Activities Association, 24 F. Supp. 2d 1110 (D. Ore. 1998) 11

Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998) 5, 6, 10, 13, 18,

Brohm v. JH Properties, Inc., 149 F.3d 517 (6^th Cir. 1998) 5

Bryant v. Troy Auto Parts Warehouse, 1997 U.S. Dist. LEXIS 22111 (S.D. Ind. 1997) 26

Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775 (6^th Cir. 1998) 16, 27

Cerrato v. Durham, 941 F. Supp. 388 (S.D. N.Y. 1996) 28

Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051 (7^thCir. 1997), cert denied, 523 U.S. 1022, 118 S.Ct. 1304, 140 L. Ed. 2d 469 (1998) 16

Coffee v. County of Hennepin, 23 F. Supp. 2d 1081 (D. Minn. 1998) 24

Colwell v. Suffolk County Police Dep't, 158 F.3d 635 (2d Cir. 1998) 10

Cook v. State of Rhode Island, 10 F.3d 17 (1^st Cir. 1993) 22

Dartt v. Browning-Ferris Industries, Inc., 691 N.E.2d 526 (Mass. 1998) 30

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) 23, 24

Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7^th Cir. 1998) 24, 25, 32

Davoll v. Webb, 194 F.3d 1116 (10^th Cir. 1999) 8, 9, 10, 12

Dees v. Austin-Travis County Dept. of Mental Health & Mental Retardation, 860 F. Supp. 1186 (W.D. Tex 1994) 16

Desai v. Tire Kingdom Inc., 944 F. Supp. 1232 (M.D. Fla. 1996) 17

Dickson v. Florida Department of Corrections, consolidated with Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11^th Cir. 1998), cert. granted, ___ U.S. ___, 120 S. Ct. 976 (2000), cert. dismissed, 2000 U.S. LEXIS 1545 (2000) 1

Dipol v. New York City Transit Authority, 999 F. Supp. 309 (E.D. N.Y. 1998) 28

Doane v. Omaha, 115 F.3d 624 (8^th Cir. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 693, 139 L. Ed. 2d 638 (1998) 21, 29

Duncan v. Washington Metropolitan Area Transit Authority, ___ F.3d ___, 2000 U.S. App. LEXIS 1020 (D.C. Cir. 2000) 21, 23

E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Hawaii 1980) 17

EEOC v. Chrysler Corp., 917 F. Supp. 1164 (E.D. Mich. 1996) 22, 30

EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5^th Cir. 1999) 6, 7, 9, 12, 18, 20, 25, 26, 29, 30

EEOC v. Rockwell Int'l Corp., 60 F. Supp. 2d 791 (N.D. Ill. 1999) 24

EEOC v. Texas Bus Lines, 923 F. Supp. 965 (S.D. Tex. 1996) 28

EEOC v. Wal-Mart Stores, Inc., 11 F. Supp. 2d 1313 (D.N.M. 1998), affirmed on other grounds, 1999 U.S. App. LEXIS 33144 (10^th Cir. 1999, unpublished) 9

EEOC v. Williams Electronics Games Inc., 1997 U.S. Dist. LEXIS 5269 (N.D. Ill. 1997) 28

Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737 (N.D. Ill. 1998) 8, 11, 19, 20, 23

Fehr v. McLean Packaging Corp., 860 F. Supp. 198 (E.D. Pa. 1994) 16

Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032 (D. Ariz. 1999) 5, 13, 14, 15, 20

Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8^th Cir. 1999) 8, 10, 20

Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144 (2d Cir. 1999) 8

Franklin v. Consolidated Edison Co. of New York, 1999 U.S. Dist. LEXIS 15582 (S.D. N.Y. 1999) 10, 20

Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 982-983 (N.D. Ill. 1998)

Garrett v. University of Alabama Bd. of Trustees, 193 F.3d 1214 (11^th Cir. 1999), motion to expedite cert. consideration denied, 2000 U.S. LEXIS 1738 (2000)

Garza v. Abbott Laboratories, 940 F. Supp. 1227 (N.D. Ill. 1996) 22, 30

Gonzales v. City of New Braunfels, 176 F.3d 834 (5^th Cir. 1999) 4

Greist v. Norristown State Hosp., 1997 U.S. Dist. LEXIS 16320 (E.D. Pa 1997) 31

Guice-Mills v. Derwinski, 967 F.2d 794 (2d Cir. 1992) 16

Gutridge v. Clure, 153 F.3d 898 (8^th Cir. 1998) 8, 9

Haiman v. Village of Fox Lane, 55 F. Supp. 2d 886 (N.D. Ill. 1999) 28

Hall v. Masterlock Company, Inc., 1999 U.S. Dist. LEXIS 13119 (M.D. Ala. 1999) 28

Hamm v. Runyon, 51 F.3d 721 (7^th Cir. 1995) 5

Hapgood v. City of Warren, 127 F.3d 490 (6th Cir. 1997) 31

Haysman v. Food Lion, 893 F. Supp. 1092 (S.D. Ga. 1995) 21

Hazeldine v. Beverage Media, 954 F. Supp. 697 (S.D. N.Y. 1997) 30

Herbst v. General Accident Insurance Company, 1999 U.S. Dist. LEXIS 15807 (E.D. Penn. 1999)

Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9^th Cir. 1996) 27

Holt v. Lone Star Gas Co., 921 S.W.2d 301 (Tex. App. - Forth Worth 1996, rehearing overruled)

Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959 (7^th Cir. 1996) 17

Hood v. Diamond Products, Inc., 658 N.E.2d 738 (Ohio 1996) 23

Horsewood v. Kids "R" Us, 27 F. Supp. 2d 1279 (D. Kan. 1998) 9

Hutchinson v. United Parcel Service, Inc., 883 F. Supp. 379 (N.D. Iowa 1995) 18

Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9^th Cir. 1995) 28

Johnson v. American Chamber of Commerce Publishers, Inc., 108 F.3d 818 (7^th Cir. 1997) 26

Jones v. Illinois Cent. R.R. Co., 859 F. Supp. 1144 (N.D. Ill. 1994) 31

Kapche v. City of San Antonio, 176 F.3d 840 (5^th Cir. 1999) 4

Katz v. City Metal Co., 87 F.3d 26 (1^st Cir. 1996) 23

Keck v. New York State Office of Alcoholism and Substance Abuse, 10 F. Supp. 2d 194 (N.D. N.Y. 1998) 24

Kimel v. Florida Bd. of Regents, ___ U.S. ___, 120 S.Ct. 631, 145 L.Ed. 2d 522 (2000) 26

Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9^th Cir. 1989), cert. denied, 498 U.S. 814, 111 S. Ct. 53, 112 L. Ed. 2d 28 (1990) 6

Kinnaman v. Ford Motor Co., 2000 U.S. Dist. LEXIS 235 (E.D. Mo. 2000) 24

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6^th Cir. 1996) 27

Kohnke v. Delta Airlines, Inc., 1995 U.S. Dist. LEXIS 12188 (N.D. Ill. 1995) 22

Kresge v. Circuitek, Division of TDI, 958 F. Supp. 223 (E.D. Pa. 1997) 28

Krocka v. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997), affirmed on other grounds sub nom Krocka v. City of Chicago, ___ F.3d ___, 2000 U.S. App. LEXIS 1649 (7th Cir. 2000) 11, 17

Krouse v. American Sterilizer Co., 872 F. Supp. 203 (W.D. Pa. 1994) 31

Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) 23, 24

Lee v. Trustees of Dartmouth College, 958 F. Supp. 37 (D. N.H.. 1997) 27

Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134 (D. Hawaii 1999) 13, 17, 18, 20, 25

Leslie v. St. Vincent New Hope, Inc., 916 F. Supp. 879 (S.D. Ind. 1996) 21

Little v. Ford Motor Co., 1999 U.S. Dist. LEXIS 13552 (W.D. Mo. 1999) 24

Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170 (10^th Cir. 1996) 8, 9

Mark v. Burke Rehabilitation Hospital, 1997 U.S. Dist. LEXIS 5159 (S.D. N.Y. 1997) 5, 25

Matlock v. City of Dallas, 1999 U.S. Dist. LEXIS 17953 (N.D. Tex. 1999) 27

McAlindin v. County of San Diego, 192 F.3d 1226 (9^th Cir. 1999) 6, 7, 8, 10, 11, 15, 23

McCleary v. National Cold Storage, Inc., 67 F. Supp. 2d 1288 (D. Kan. 1999) . .

McKay v. Toyota Motor Mfg. USA, Inc., 878 F. Supp. 1012 (E.D. Ky. 1995) 21

Minor v. Stanford University, 1999 U.S. Dist. LEXIS 9135 (N.D. Cal. 1999) 24

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) 9, 12, 23

Murphy v. United Parcel Service, 527 U.S. 516, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999) 2, 4,

Murray v. Surgical Specialties Corp., 1999 U.S. Dist. LEXIS 277 (E.D. Pa. 1999) 24

Natural Motion v. DCCHR, 687 A.2d 215 (D.C. App. 1997) 30

Nedder v. Rivier College, 908 F. Supp. 66 (D. N.H. 1995) 9, 27

Newberry v. East Texas State University, 161 F.3d 276 (5^th Cir. 1998) 32

Oesterling v. Walters, 760 F.2d 859 (8^th Cir. 1985) 9

Olson v. Dubuque Community School District, 137 F.3d 609 (8^th Cir. 1998) 11

Olson v. General Elec. Astrospace, 101 F.3d 947 (3d Cir. 1996) 27

Olson v. General Elec. Astrospace, 966 F. Supp. 312 (D. N.J. 1997) 30

Pack v. K Mart Corp., 166 F.3d 1300 (10^th Cir. 1999) 10

Patterson v. Downtown Medical & Diagnostic Center, 866 F. Supp. 1379 (M.D. Fla. 1994) 6, 18

Paulus v. Kaiser Permanente Medical Group, 1999 U.S. Dist. LEXIS 7784 (N.D. Cal. 1999) 24

Petsch-Schmid v. Boston Edison Co., 914 F. Supp. 697 (D. Mass. 1996) 26

Piquard v. City of East Peoria, 887 F. Supp. 1106 (C.D. Ill. 1995) 31

Potvin v. Champlain Cable Corp., 687 A.2d 95 (Vt. 1996) 18

Presta v. Southeastern Pa. Transp. Authority, 1998 U.S. Dist. LEXIS 8630 (E.D. Pa. 1998) 10

Pridemore v. Rural Legal Aid Society, 625 F. Supp. 1180 (S.D. Ohio 1985) 9, 11

Pritchard v. Southern Company Services, 92 F.3d 1130 (11^th Cir. 1996), modified on other grounds, 102 F.3d 1118 (11^th Cir. 1996) 17, 24

Pryor v. Trane Co., 138 F.3d 1024 (5^th Cir. 1998) 16, 17

Qualls v. Lack's Stores, 1999 U.S. Dist. LEXIS 5731 (N.D. Tex. 1999) 10

Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1^st Cir. 1999) . .

Radaszewski v. Metropolitan Water Reclamation Dist. of Greater Chicago, 1998 U.S. Dist. LEXIS 10070 (N.D. Ill. 1998) 31

Riemer v. Illinois Dept. of Transportation, 148 F.3d 800 (7^th Cir. 1998) 28

Rolff v. Interim Personnel, Inc., 1999 U.S. Dist. LEXIS 18096 (E.D. Mo. 1999) 5, 27

Sabrah v. Lucent Technologies, Inc., 1998 U.S. Dist. LEXIS 17906 (N.D. Tex. 1998) 23

Sakellarides v. Sea-Land Service, Inc., 2000 U.S. Dist. LEXIS 402 (E.D. La. 2000) 28

Scharff v. Frank, 791 F. Supp. 182 (S.D. Ohio 1991) 21

School Bd. of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed. 2d 307 (1987)

Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347 (S.D. Fla. 1999) 8

Seaman v. C.S.P.H., Inc., 1997 U.S. Dist. LEXIS 21177 (N.D. Tex. 1997) 10, 23

Sicard v. Sioux City, 950 F. Supp. 1420 (N.D. Iowa 1996) 2

Silk v. City of Chicago, 1997 U.S. Dist. LEXIS 20654 (N.D. Ill. 1997), aff'd on other grounds, 194 F.3d 708 (7^th Cir. 1999) 10

Snyder v. Fry's Food Stores of Arizona, 1999 U.S. App. LEXIS 29782 (9th Cir. 1999, unpublished) 12, 29

Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997) 11

Stafne v. Unicare Homes, Inc., 1999 U.S. Dist. LEXIS 2848 (D. Minn. 1999) 9

Stensrud v. Szabo Contracting Company, Inc., 1999 U.S. Dist. LEXIS 11974 (N.D. Ill. 1999) 25,

Stone v. La Quinta Inns, Inc., 942 F. Supp. 261 (E.D. La. 1996) 17

Summers v. Missouri-Pacific Railroad, 132 F. Supp. 2d 599 (D. Mo. 1998) 24

Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S Ct. 2139, 144 L. Ed. 2d 450 (1999)

Sweet v. Electronic Data Systems, 1996 U.S. Dist. LEXIS 5544 (S.D. N.Y. 1996) 11

Swenson v. County of Los Angeles, 75 Cal. App. 4th 889, 89 Cal. Rptr. 2d 572 (Ct. App. 1999)

Talk v. Delta Airlines, Inc., 165 F.3d 1021 (5^th Cir. 1999) 30

Tangires v. Johns Hopkins Hospital, 2000 U.S. Dist. LEXIS 142 (D. Md. 2000) 13

Taylor v. Pathmark Stores, 177 F.3d 180 (3d Cir. 1999) 33

Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) 6, 11, 15, 16, 19

Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S. Ct. 586, 136 L. Ed. 2d 515 (1996) 5

Todd v. Academy Corp., 57 F. Supp.2d 448 (S.D. Tex. 1999) 20

Tzoumis v. Tempel Steel Company, 1999 U.S. Dist. LEXIS 18637 (N.D. Ill. 1999) 12

United States v. City and County of Denver, 49 F. Supp.2d 1233 (D. Colo. 1999), affirmed in part and reversed in part (on other grounds) sub nom Davoll v. Webb, 194 F.3d 1116 (10^th Cir. 1999) 23

Vaughn v. Federal Express Corporation, 1997 U.S. Dist. LEXIS 15550 (E.D. La. 1997) 8

Vincent v. West Texas State University, 895 S.W.2d 469 (Tex. App. - Amarillo 1995, no writ) 31

Wagner v. Kester Solder Co., 1995 U.S. Dist. LEXIS 9213 (N.D. Ill. 1995) 28

Webb v. Garelick Mfg. Co., 94 F.3d 484 (8^th Cir. 1996) 17

Weber v. Strippit, Inc., 186 F.3d 907 (8^th Cir. 1999) 32

Wellington v. Lyon County Sch. District, 187 F.3d 1150 (9th Cir. 1999) 11

Wheaton v. Ogden Newspapers, Inc., 1999 U.S. Dist. LEXIS 15841 (N.D. Iowa 1999) 12, 20

Wilson v. Gayfers Montgomery Fair Co., 953 F. Supp. 1415 (M.D. Ala. 1996) 28

Workman v. Frito-Lay, Inc., 165 F.3d 460 (6^th Cir. 1999) 10

Worthington v. City of New Haven, 1999 U.S. Dist. LEXIS 16104 (D. Conn. 1999) 20

Zenor v. El Paso Healthcare System, 176 F.3d 847 (5^th Cir. 1999) 8, 9

STATUTES:

29 U.S.C. § 705(20)(B) 4, 16

29 U.S.C. § 705(20)(B)(iii) 24, 26

42 U.S.C. §§ 12101, et seq. 1

42 U.S.C. § 12101(a) 1

42 U.S.C. § 12101(a)(3) 1

42 U.S.C. § 12101(a)(9) 1

42 U.S.C. § 12102(2) 4, 16

42 U.S.C. § 12102(2)(B) 24

42 U.S.C. § 12102(2)(C) 26

42 U.S.C. §§ 12112(b)(6) 3

42 U.S.C. §§ 12113(b) 3

REGULATIONS:

29 C.F.R. § 1630.2(h) 5

29 C.F.R. § 1630.2(i) 8-9, 11

29 C.F.R. § 1630.2(j) 16, 17

29 C.F.R. § 1630.2(j)(3)(ii) 21

29 C.F.R. pt. 1630 App. § 1630.2(h) 5

29 C.F.R. pt. 1630 App. § 1630.2(i) 8, 9, 10

29 C.F.R. pt. 1630 App. § 1630.2(j) 11, 18, 21, 22, 23

MISCELLANEOUS:

Americans with Disabilities Act Handbook, (EEOC and DOJ, Oct. 1991), <http://www.jsrd.or.jp/dinf_us/ada/ada_preamble.htm>. 1

"Background Materials on Diabetes and Functional Limitations For Lawyers Handling Diabetes Discrimination Cases," by Shereen Arent, National Director of Legal Advocacy, American Diabetes Association, <http://www.diabetes,org/advocacy/discrim_background.asp> 12

Burgdorf, "Substantially Limited" Protection From Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 409 (1997) 17

EEOC Compliance Manual § 902, <http://www.eeoc.gov/docs/902cm.html> 11, 18, 22

EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (3/25/97), <http://www.eeoc.gov/docs/psych.txt> 6, 8, 10, 11, 18

Employee & Union Member Guide to Labor Law (West Group) 12

Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified" (EEOC 7/26/99), <http://www.eeoc.gov/docs/field-ada.html>

List of Limitations on Major Life Activities, published by the Bazelon Center for Mental Health Law (8/11/99), <http:/www.bazelon.org/sct99ada.html> 12

1. 42 U.S.C. § 12101(a)(3).

2. 42 U.S.C. § 12101(a)(9).

3. 42 U.S.C. §§ 12101, et seq.

4. See Preamble, Americans with Disabilities Act Handbook, (EEOC and DOJ, Oct. 1991), online at: <http://www.jsrd.or.jp/dinf_us/ada/ada_preamble.htm>.

5. 42 U.S.C. § 12101(a)

6. See Preamble, Americans with Disabilities Act Handbook, supra.

7. The uncertainty surrounding the ADA's promise has been greatly increased by the Supreme Court's willingness to review cases challenging the constitutionality of Titles I and II of the Act on the heels of its decision in Kimel v. Florida Bd. of Regents, ___ U.S. ___, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000) (finding the Age Discrimination in Employment Act beyond the 14^th Amendment power of Congress). Two such cases settled after cert. was granted and will not be reviewed. Dickson v. Florida Department of Corrections, consolidated with Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11^th Cir. 1998), cert. dismissed, 2000 U.S. LEXIS 1545 (2000); Alsbrook v. City of Maumelle, Arkansas, 184 F.3d 999 (8th Cir. 1999, en banc), cert. dismissed sub nom Alsbrook v. Arkansas, 2000 U.S. LEXIS 1736 (2000). Other such cases are pending before the Court, however. See, e.g., Garrett v. University of Alabama Bd. of Trustees, 193 F.3d 1214 (11^th Cir. 1999), motion to expedite cert. consideration denied, 2000 U.S. LEXIS 1738 (2000).

8. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999).

9. This legislative history is set out in, e.g., Sicard v. Sioux City, 950 F. Supp. 1420, 1437-1438 (N.D. Iowa 1996). In Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S ct 2139, 2146, 144 L ed 2d 450, 462 (1999), the Supreme Court refused to consider this legislative history because it found it contrary to the statutory language.

10. In the majority's view, neither the EEOC nor the DOJ was given authority to issue regulations defining disability. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2145, 144 L. Ed. 2d 450, 460 (1999).

11. Murphy v. United Parcel Service, 527 U.S. 516, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999).

12. In addition to the restrictive view which the Court gave to the notion of disability, all three cases raise the question of what deference the Court is willing to give the EEOC regulations and interpretive guidance, and even their validity. The Court did not decide these questions, but seemed to go out of its way in dicta to point out possible defects in these regulations and guidance.

13. It may be worthwhile for future claimants, faced with the challenge of proving that their impairment qualifies as a disability, to review these studies for supporting language.

14. Although Murphy had a lifting limitation, the plaintiff apparently did not appeal the lower court's decision that he had no substantial limitation of a major life activity, and the high court assumed there was none.

15. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999).

16. Such hiring criteria must typically be justified by showing that they are job-related, consistent with business necessity, and satisfy the direct threat criteria. See 42 U.S.C. §§ 12112(b)(6) and 12113(b).

17. The waiver program was experimental because it was unsupported by any facts regarding safe driving; it was devised solely to collect data for future studies on this point.

18. The Court made it clear that the analysis would be different if the job qualification at issue was the employer's own, rather than a federal safety standard. The Court also made it clear that if the waiver program were not experimental, but were itself based on safety considerations, an employer may be required to accept such a waiver, and allow the plaintiff to seek one, as a reasonable accommodation.

19. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 530 (1999).

20. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, ___, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 531 (1999).

21. Murphy v. United Parcel Service, 527 U.S. 516, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999).

22. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999).

23. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 144 L. Ed. 2d 518, 531 (1999).

24. See Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, ___, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 530-531 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2147, 144 L. Ed. 2d 450, 463 (1999).

25. But compare Kapche v. City of San Antonio, 176 F.3d 840 (5^th Cir. 1999), and Gonzales v. City of New Braunfels, 176 F.3d 834 (5^th Cir. 1999).

26. 42 U.S.C. § 12102(2); 29 U.S.C. § 705(20)(B).

27. Justice Stevens' dissent calls the interpretation "miserly."

28. Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1, 13 (1^st Cir. 1999) (court found unpersuasive other decisions rejecting disability claims by persons with the same diagnosis, because of the individualized analysis required); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1040 (D. Ariz. 1999) (similar).

29. This step-by-step analysis is consistent with the analysis of both the Supreme Court, see Rolff v. Interim Personnel, Inc., 1999 U.S. Dist. LEXIS 18096*7 (E.D. Mo. 1999), citing Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998), and the EEOC. See EEOC's Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

30. 29 C.F.R. § 1630.2(h). This definition in the ADA regulations adopts the earlier definition from the regulations implementing § 504 of the Rehabilitation Act of 1973. 29 C.F.R. pt. 1630 App. § 1630.2(h).

31. Even correctable nearsightedness is an impairment. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2150, 144 L. Ed. 2d 450, 467 (1999).

32. See, e.g., Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 163 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S. Ct. 586, 136 L. Ed. 2d 515 (1996); Brohm v. JH Properties, Inc., 149 F.3d 517, 522 (6^th Cir. 1998) (plaintiff who did not tell his employer that he had a disability, but only that he "might have one," is not protected); Hamm v. Runyon, 51 F.3d 721 (7^th Cir. 1995) (holding that tardiness is not such an obvious manifestation of disability as to compel the conclusion that the employer knew of the disability).

33. See, e.g., Mark v. Burke Rehabilitation Hospital, 1997 U.S. Dist. LEXIS 5159*21 (S.D. N.Y. 1997) (knowledge of limitations employee experienced after chemotherapy sufficient); Abbasi v. Herzfeld & Rubin, P.C., 1995 U.S. Dist. LEXIS 6629*7-8 (S.D. N.Y. 1995) (finding enough disclosure because, although the employee did not specify the disability, he requested specific accommodations including no heavy lifting or stair climbing, and the firm's discharge statement indicated knowledge of some kind of disability).

34. EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997), online at <http://www.eeoc.gov/docs/psych.html>; Taylor v. Phoenixville School District, 184 F.3d 296, 313 (3d Cir. 1999); Patterson v. Downtown Medical & Diagnostic Center, 866 F. Supp. 1379, 1381 (M.D. Fla. 1994).

35. Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 875 (9^th Cir. 1989), cert. denied, 498 U.S. 814, 111 S. Ct. 53, 112 L. Ed. 2d 28 (1990). See also Anderson v. Gus Mayer Boston Store of Delaware, 924 F. Supp. 763, 777 n.34 (E.D. Tex. 1996) (constructive knowledge of impairment usually sufficient in cases alleging a record or perception of impairment).

36. See Bragdon v. Abbott, 524 U.S. 624, 638, 118 S. Ct. 2196, 2205, 141 L. Ed. 2d 540, ___ (1998), cited in McAlindin v. County of San Diego, 192 F.3d 1226, 1233 (9^th Cir. 1999). Though Bragdon was decided under Title III of the ADA, it is also relevant to employment cases, since both Title III and Title I share the same definition of disability. The breadth of the term "major life activity" is also evident in Sutton, as referenced in nn. 49-57 below. Note that the studies cited in support by the Court in Sutton should be reviewed for other examples of major life activities.

37. Bragdon, supra, 524 U.S. 624, 638-639, 118 S. Ct. 2196, 2205, 141 L. Ed. 2d 540, ___ (1998).

38. That is made clear in Bragdon v. Abbott, in which the Supreme Court found reproduction and childbearing major life activities, though many people do not experience them, by choice or otherwise.

39. Bragdon, supra, 524 U.S. 624, 641, 118 S. Ct. 2196, 2206, 141 L. Ed. 2d 540, ___ (1998). While mitigating measures may limit the extent to which an impairment is disabling, a personal choice to limit activities in order to minimize the impairment's effects should not cause a plaintiff to lose the act's protection.

40. EEOC v. R.J. Gallagher Co., 181 F.3d 645, 654 (5^th Cir. 1999), quoting Bragdon, supra, 524 U.S. 624, 638, 118 S. Ct. 2196, 2205, 141 L. Ed. 2d 540, ___ (1998); McAlindin v. County of San Diego, 192 F.3d 1226, 1233 (9^th Cir. 1999).

41. EEOC v. R.J. Gallagher Co., 181 F.3d 645, 654-655 (5^th Cir. 1999). See also McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9^th Cir. 1999) (sexuality is a major life activity because of its importance in how we define ourselves and how we are perceived by others, and is a fundamental part of how we bond in intimate relationships).

42. 29 C.F.R. § 1630.2(i); Zenor v. El Paso Healthcare System, 176 F.3d 847, 859 n.8 (5^th Cir. 1999); Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9^th Cir. 1999). See also the EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997), online at <http://www.eeoc.gov/docs/psych.txt>; Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347, 1359 (S.D. Fla. 1999) (finding caring for oneself to be a major life activity, but finding no substantial limitation).

43. Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 151 (2d Cir. 1999). See also the EEOC's Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(IV)(C)(4) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html> (cooking and bathing are basic activities of caring for oneself).

44. Id. See also Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347, 1359 (S.D. Fla. 1999) (finding dressing oneself to be a major life activity, but finding no substantial limitation).

45. Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 151 (2d Cir. 1999).

46. Id.; Amir v. St. Louis University, 184 F.3d 1017, 1027 (8^th Cir. 1999); Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 746-747 (N.D. Ill. 1998).

47. Amir v. St. Louis University, 184 F.3d 1017, 1027 (8^th Cir. 1999).

48. Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347, 1359 (S.D. Fla. 1999) (finding cooking for oneself to be a major life activity, but finding no substantial limitation). See also the EEOC's Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(IV)(C)(4) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html> (cooking and bathing are basic activities of caring for oneself).

49. The studies relied on by the Court in Sutton in determining who is a person with a disability suggest this is a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2148, 144 L. Ed. 2d 450, 464 (1999).

50. Davoll v. Webb, 194 F.3d 1116, 1132 (10^th Cir. 1999); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8^th Cir. 1999); Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10^th Cir. 1996); Vaughn v. Federal Express Corporation, 1997 U.S. Dist. LEXIS 15550*6 (E.D. La. 1997). See also 29 C.F.R. pt. 1630 App. § 1630.2(i). See also the studies relied on by the Court in Sutton in determining who is a person with a disability, which suggest that lifting is a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2148, 144 L. Ed. 2d 450, 464 (1999). But cf. Gutridge v. Clure, 153 F.3d 898, 900 (8^th Cir. 1998) (though regulations list lifting as a major life activity, a general lifting restriction from a doctor, without more detail, is not proof of a disability).

51. The studies relied on by the Court in Sutton in determining who is a person with a disability suggest this is a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2148, 144 L. Ed. 2d 450, 464 (1999).

52. Id.

53. Id.

54. Id.

55. Id.

56. Id.

57. Id.

58. 29 C.F.R. § 1630.2(i); Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); EEOC v. Wal-Mart Stores, Inc., 11 F. Supp. 2d 1313, 1319 (D.N.M. 1998), affirmed on other grounds, 1999 U.S. App. LEXIS 33144 (10^th Cir. 1999, unpublished).

59. 29 C.F.R. § 1630.2(i); Zenor v. El Paso Healthcare System, 176 F.3d 847, 859 n.8 (5^th Cir. 1999); Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); Stafne v. Unicare Homes, Inc., 1999 U.S. Dist. LEXIS 2848*18 (D. Minn. 1999); Nedder v. Rivier College, 908 F. Supp. 66, 74 (D. N.H. 1995).

60. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2149, 144 L. Ed. 2d 450, 466 (1999). In somewhat surprising language, the Court said that "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." (emphasis added).

61. 29 C.F.R. § 1630.2(i); Zenor v. El Paso Healthcare System, 176 F.3d 847, 859 n.8 (5^th Cir. 1999); Horsewood v. Kids "R" Us, 27 F. Supp. 2d 1279, 1286 (D. Kan. 1998).

62. 29 C.F.R. § 1630.2(i); Zenor v. El Paso Healthcare System, 176 F.3d 847, 859 n.8 (5^th Cir. 1999).

63. 29 C.F.R. § 1630.2(i); Zenor v. El Paso Healthcare System, 176 F.3d 847, 859 n.8 (5^th Cir. 1999). See also Pridemore v. Rural Legal Aid Society, 625 F. Supp. 1180, 1183-1184 (S.D. Ohio 1985) (finding no substantial limitation in the major life activity of speaking).

64. 29 C.F.R. § 1630.2(i); Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999).

65. 29 C.F.R. § 1630.2(i). Although the Supreme Court questioned the logic of including working as a major life activity in Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2151, 144 L. Ed 2d 450, 468 (1999), courts have since continued to hold that it is one. EEOC v. R.J. Gallagher Co., 181 F.3d 645, 654-655 (5^th Cir. 1999); Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999).

66. Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8^th Cir. 1999); Oesterling v. Walters, 760 F.2d 859, 861 (8^th Cir. 1985). See also 29 C.F.R. pt. 1630 App. § 1630.2(i).

67. Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8^th Cir. 1999); Oesterling v. Walters, 760 F.2d 859, 861 (8^th Cir. 1985). See also 29 C.F.R. pt. 1630 App. § 1630.2(i).

68. Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8^th Cir. 1999). See also 29 C.F.R. pt. 1630 App. § 1630.2(i).

69. Bragdon v. Abbott, 524 U.S. 624, 639, 118 S. Ct. 2196, 2205, 141 L. Ed. 2d 540, ___ (1998).

70. McAlindin v. County of San Diego, 192 F.3d 1226, 1233 (9^th Cir. 1999). There is also support for this in Bragdon, supra, 524 U.S. 624, 638, 118 S. Ct. 2196, 2205, 141 L. Ed. 2d 540, ___ (1998) ("Reproduction falls well within the phrase 'major life activity.' Reproduction and the sexual dynamics surrounding it are central to the life process itself."). Contra: Qualls v. Lack's Stores, 1999 U.S. Dist. LEXIS 5731*6 (N.D. Tex. 1999).

71. McAlindin v. County of San Diego, 192 F.3d 1226, 1233 (9^th Cir. 1999); Pack v. Kmart Corp., 166 F.3d 1300 (10^th Cir. 1999); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998); Franklin v. Consolidated Edison Company of New York, 1999 U.S. Dist. LEXIS 15582 (S.D. N.Y. 1999); Presta v. Southeastern Pa. Transp. Authority, 1998 U.S. Dist. LEXIS 8630*20 (E.D. Pa. 1998); Silk v. City of Chicago, 1997 U.S. Dist. LEXIS 20654*27 (N.D. Ill. 1997), aff'd on other grounds, 194 F.3d 708 (7^th Cir. 1999); Seaman v. C.S.P.H., Inc., 1997 U.S. Dist. LEXIS 21177*34 (N.D. Tex. 1997); EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997), online at <http://www.eeoc.gov/docs/psych.txt>.

72. Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6^th Cir. 1999).

73. Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 746-747 (N.D. Ill. 1998).

74. Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2d Cir.1998), judgment vacated on other grounds, ___ U.S. ___, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999); Sweet v. Electronic Data Systems, 1996 U.S. Dist. LEXIS 5544 (S.D. N.Y. 1996) (holding reading a major life activity, but finding insufficient evidence of a substantial limitation); Pridemore v. Rural Legal Aid Society, 625 F. Supp. 1180, 1183-1184 (S.D. Ohio 1985) (similar).

75. Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094, 1117 (S.D. N.Y. 1997), aff'd on other grounds, 156 F.3d 321 (2d Cir. 1998), judgment vacated on other grounds, ___ U.S. ___, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999).

76. Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3d Cir. 1999). See also the EEOC Compliance Manual § 902.3(b), online at <http://www.eeoc.gov/docs/902cm.html>.

77. 29 C.F.R. § 1630.2(i); Amir v. St. Louis University, 184 F.3d 1017, 1027 (8^th Cir. 1999); Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 155 (1^st Cir. 1998) (educational claim under Rehabilitation Act); Bingham v. Oregon School Activities Association, 24 F. Supp. 2d 1110, 1116 (D. Ore. 1998) (similar).

78. Herbst v. General Accident Insurance Company, 1999 U.S. Dist. LEXIS 15807 (E.D. Penn. 1999); EEOC Compliance Manual § 902.3(b), online at <http://www.eeoc.gov/docs/902cm.html>; EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, online at <http://www.eeoc.gov/docs/psych.txt>.

79. McAlindin v. County of San Diego, 192 F.3d 1226, 1133 (9^th Cir. 1999); Krocka v. Bransfield, 969 F. Supp. 1073, 1084 (N.D. Ill. 1997), affirmed on other grounds sub nom Krocka v. City of Chicago, ___ F.3d ___, 2000 U.S. App. LEXIS 1649 (7th Cir. 2000). See also the EEOC Compliance Manual § 902.3(b), online at <http://www.eeoc.gov/docs/902cm.html>; EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, online at <http://www.eeoc.gov/docs/psych.txt>. The Court deferred to the above Guidance in Olson v. Dubuque Community School District, 137 F.3d 609, 612 (8^th Cir. 1998), but found no evidence that the plaintiff's conf2002licts with her employer were the manifestation of a disability. But cf. Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997) (questioning but not deciding whether interacting with others is too vague to be a major life activity).

80. Under the EEOC guidance, working should be considered only if no other life activity is affected. 29 C.F.R. pt. 1630 App. § 1630.2(j), cited in Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2151, 144 L. Ed. 2d 450, 468-469 (1999). Note that the Court hinted in Sutton that the results might have been more favorable to the plaintiffs if they had focused on the life activity of seeing, rather than working. Id., 527 U.S. at ___, 119 S  Ct. at 2150, 144 L. Ed. 2d at 467.

81. Although the Supreme Court questioned whether working is properly considered a major life activity under the ADA, it expressly followed the EEOC guidance in this area. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2151, 144 L. Ed. 2d 450, 468-469 (1999).

82. EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5^th Cir. 1999); Davoll v. Webb, 194 F.3d 1116, 1134 (10^th Cir. 1999); Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999).

83. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2151, 144 L. Ed. 2d 450, 468 (1999) (following EEOC guidance).

84. See, e.g., Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1^st Cir. 1999) (finding sufficient evidence that a 10-pound lifting restriction substantially limited the ability to work of a warehouse worker with a high school education and a history of manual labor); Snyder v. Fry's Food Stores of Arizona, 1999 U.S. App. LEXIS 29782 (9th Cir. 1999, unpublished) (question of fact as to whether heavy laborer with back injury who was severely restricted in his ability to perform repetitive activities and heavy lifting, and who had no special training or skills, was substantially limited in working); Tzoumis v. Tempel Steel Company, 1999 U.S. Dist. LEXIS 18637 (N.D. Ill. 1999) (question of fact whether furnace operator with back injury was substantially limited in working, where injury prevented heavy but not semi-skilled labor); Wheaton v. Ogden Newspapers, Inc., 1999 U.S. Dist. LEXIS 15841 (N.D. Iowa 1999) (inability to perform medium and heavy labor constitutes substantial limitation in class of jobs or broad range of jobs). See also the authorities cited in n. 133 below, and in Employee & Union Member Guide to Labor Law § 11.03[2][e][iii] (West Group).

85. See "Background Materials on Diabetes and Functional Limitations For Lawyers Handling Diabetes Discrimination Cases," by Shereen Arent, National Director of Legal Advocacy, American Diabetes Association, online at <http://www.diabetes.org/advocacy/discrim_background.asp>.

86. See, e.g., List of Limitations on Major Life Activities, published by the Bazelon Center for Mental Health Law (8/11/99), online at <http://www.bazelon.org/sct99ada.html>.

87. See Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified" (Background) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>. See also Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134, 1147 (D. Hawaii 1999) ("Whether an impairment is substantially limiting is measure at the time of the requested accommodation.").

88. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2146, 144 L. Ed. 2d 450, 462 (1999); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1037 (D. Ariz. 1999).

89. Compare Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1037-1038 (D. Ariz. 1999). In that case, the employer cited the testimony of Plaintiff's expert, who said he thought the plaintiff "would benefit from hearing aids." The Court rejected the argument because, regardless of the doctor's opinion, the plaintiff did not use them. She had tried them in the past, but they picked up background noise. The Court noted that Sutton requires a case-by-case analysis of the limitations an individual faces in his or her current state.

90. Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1037-1038 (D. Ariz. 1999).

91. Bragdon v. Abbott, 524 U.S. 624, 641, 118 S. Ct. 2196, 2206, 141 L. Ed. 2d 540, ___ (1998). While mitigating measures may limit the extent to which an impairment is disabling, a personal choice to limit activities in order to minimize the impairment's effects should not cause a plaintiff to lose the act's protection.

92. See Tangires v. Johns Hopkins Hospital, 2000 U.S. Dist. LEXIS 142*23-24 (D. Md. 2000) (since plaintiff's asthma was correctable by steroidal medication, and since she voluntarily refused the recommended medication based on her subjective and unsubstantiated belief that such use would adversely affect her pituitary adenoma, her asthma did not substantially limit her in any major life activity). There are also a couple of cases that suggest this pre-Sutton, but they are really about workplace misconduct, rather than mitigating measures.

93. This is also the view of the EEOC, and it has expressed interest in assisting in litigating this issue.

94. Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1037-1038 and n.4 (D. Ariz. 1999).

95. Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1041-1042 (D. Ariz. 1999).

96. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2149, 144 L. Ed. 2d 450, 466 (1999).

97. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 530-531 (1999). Even so, most persons with monocular vision still have a disability. Id.

98. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2149, 144 L. Ed. 2d 450, 466 (1999).

99. Id.

100. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, ___, 119 S. Ct. 2162, 2169, 144 L. Ed. 2d 518, 531 (1999). While the Court stated that Kirkingburg was likely substantially limited, and recognized that "some impairments may invariably cause a substantial limitation of a major life activity," it noted that the impact of monocularity varies, and it is "not the stuff of a per se rule." The Court in Kirkingburg also followed the EEOC regulations and guidelines on what constitutes a substantial limitation, stating that it means more than a "mere difference." The Court did not consider whether the plaintiff was "regarded as" a person with a disability, since unlike the Sutton and Murphy cases, that argument was not presented in this appeal.

101. McAlindin v. County of San Diego, 192 F.3d 1226, 1236 (9^th Cir. 1999).

102. Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999).

103. The plaintiff maintained that even though lithium has improved her condition and reduced the risk of psychotic episodes, the drug had not perfectly controlled her symptoms, leaving her still substantially limited in her ability to think. Her doctor's notes indicated that she continued to suffer symptoms of her disorder, including paranoia.

104. Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032 (D. Ariz. 1999).

105. Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(III) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

106. Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1038-1039 (D. Ariz. 1999). See also Belk v. Southwestern Bell, 194 F.3d 946, 950 (8th Cir. 1999) (finding the plaintiff had a disability, notwithstanding the employer's litany of all of the activities that the plaintiff could engage in).

107. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2147, 144 L. Ed. 2d 450, 463 (1999). The Court in Murphy apparently did not consider the issue of side effects because none were alleged.

108. See, e.g., Belk v. Southwestern Bell, 194 F.3d 946 (8th Cir. 1999) (although customer service representative with residual effects of polio could walk using a leg brace, he remained substantially limited in walking, since his range of motion was limited by the brace, his gait was hampered by a pronounced limp; the court found these considerations were consistent with the language in Sutton directing courts to consider the negative side effects of mitigating measures); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 781 (6^th Cir. 1998); Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051, 1052 (7^th Cir. 1997), cert denied, 118 S. Ct. 1304 (1998) (although treatment of condition that is not itself disabling may result in disability, there was no such evidence here); Guice-Mills v. Derwinski, 967 F.2d 794, 796-797 (2d Cir. 1992) (nurse on sedatives for depression found disabled under Rehabilitation Act); Dees v. Austin-Travis County Dept. of Mental Health & Mental Retardation, 860 F. Supp. 1186, 1189 (W.D. Tex 1994) (mentally ill person whose ability to work is limited by medication's side effects); Fehr v. McLean Packaging Corp., 860 F. Supp. 198, 200 (E.D. Pa. 1994).

109. Taylor v. Phoenixville School District, 184 F.3d 296, 308-309 (3d Cir. 1999).

110. Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(IV) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

111. 42 U.S.C. § 12102(2); 29 U.S.C. § 705(20)(B).

112. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2150, 144 L. Ed. 2d 450, 468 (1999), cited in Herbst v. General Accident Insurance Company, 1999 U.S. Dist. LEXIS 15807*17 (E.D. Penn. 1999).

113. 29 C.F.R. § 1630.2(j), cited in Pryor v. Trane Co., 138 F.3d 1024, 1025 (5^th Cir. 1998) (while the statute does not define "substantially limits," the EEOC regulations "provide significant guidance").

114. Taylor v. Phoenixville School District, 184 F.3d 296, 307 (3d Cir. 1999), citing Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, ___, 119 S. Ct. 2162, 2168, 144 L. Ed. 2d 518, 530 (1999).

115. 29 C.F.R. § 1630.2(j), cited in Pryor v. Trane Co., 138 F.3d 1024, 1025 (5^th Cir. 1998) (while the statute does not define "substantially limits," the EEOC regulations "provide significant guidance").

116. Id. See also Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134 (D. Hawaii 1999) (fact that plaintiff's lung cancer went into remission after four months did not render condition "temporary" and unprotected because the substantial limitation determination considers not only duration, but nature and severity, and the court could not conclude that as a matter of law, life-threatening cancer is not a disability if it is life-threatening for "only" four months).

117. 29 C.F.R. § 1630.2(j), cited in Pryor v. Trane Co., 138 F.3d 1024, 1025 (5^th Cir. 1998) (while the statute does not define "substantially limits," the EEOC regulations "provide significant guidance").

118. Id.

119. Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 982-983 (N.D. Ill. 1998).

120. See, e.g., Burgdorf, "Substantially Limited" Protection From Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 409 (1997).

121. Compare, for example, Pritchard v. Southern Company Services, 92 F.3d 1130, 1133-1134 (11^th Cir. 1996), modified on other grounds, 102 F.3d 1118 (11^th Cir. 1996) (plaintiff raised triable issue of disability by showing that her depression and dysautonomia resulted in fatigue, sleep and communication problems, difficulty concentrating, and suicidal thoughts, and required medication and disability leave), Krocka v. Bransfield, 969 F. Supp. 1073, 1083 (N.D. Ill. 1997), affirmed on other grounds sub nom Krocka v. City of Chicago, ___ F.3d ___, 2000 U.S. App. LEXIS 1649 (7th Cir. 2000) (similar), and Stone v. La Quinta Inns, Inc., 942 F. Supp. 261, 264 (E.D. La. 1996) (affidavit regarding visual impairment sufficient), with Adam v. Dickinson Place Charitable Corp., 1997 U.S. Dist. LEXIS 4793 (N.D. Tex.), aff'd, 119 F.3d 1 (5^th Cir., unpublished opinion), cert. denied, 522 U.S. 916, 118 S. Ct. 302, 139 L. Ed. 2d 233 (1997) (plaintiff failed to put forth evidence that bipolar disorder substantially impaired activities).

122. Webb v. Garelick Mfg. Co., 94 F.3d 484 (8^th Cir. 1996) (court must examine individual's particular situation, which includes determining class of jobs relevant to the individual based on the individual's skills and experience; it is error to suggest that plaintiff cannot be disabled as long as there is any job she can do); Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959, 962-963 (7^th Cir. 1996) (district court failed to conduct "meaningful analysis" of the particular situation); Desai v. Tire Kingdom Inc., 944 F. Supp. 1232 (M.D. Fla. 1996); E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1100 (D. Hawaii 1980).

123. Blanton v. Winston Printing Co., 868 F. Supp. 804 (M.D. N.C. 1984). For example, if the only limitation remaining after an employee's return to work from a short leave of absence was the need to attend six monthly therapy sessions, there may not be a substantial limitation. EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655 (5^th Cir. 1999).

124. Hutchinson v. United Parcel Service, Inc., 883 F. Supp. 379, 402-403 (N.D. Iowa 1995) (employee not disabled because her injuries, though not minor, were temporary, and any permanent impairment was slight); Blanton v. Winston Printing Co., 868 F. Supp. 804, (M.D. N.C. 1994) (knee injury only precluding plaintiff from working for a few days during each of three consecutive months was not a substantial impairment). 29 C.F.R. pt. 1630 App. § 1630.2(j); EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>.

125. EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>; EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997), online at <http://www.eeoc.gov/docs/psych.txt>; Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10^th Cir. 1998); Patterson v. Downtown Medical & Diagnostic Center, 866 F. Supp. 1379, 1381 (M.D. Fla. 1994).

126. EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>; Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134 (D. Hawaii 1999) (fact that plaintiff's lung cancer went into remission after four months did not render condition "temporary" and unprotected because the substantial limitation determination considers not only duration, but nature and severity, and the court could not conclude that as a matter of law, life-threatening cancer is not a disability if it is life-threatening for "only" four months); Potvin v. Champlain Cable Corp., 687 A.2d 95, 98 (Vt. 1996) (impairment that lasted for at least five months and was the result of a long-term illness that required three separate surgeries was not too fleeting to be covered under state law that adopted the ADA's definition of disability).

127. EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>.

128. Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998).

129. EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>.

130. See, e.g., Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 743 (N.D. Ill. 1998), citing Bragdon v. Abbott; Berk v. Bates Advertising USA, Inc., 25 F. Supp. 2d 265, 269 (S.D. N.Y. 1998).

131. Bragdon v. Abbott, 524 U.S. 624, ___, 118 S. Ct. 2196, 2206, 141 L. Ed. 2d 540, 558-559 (1998) (finding the evidence that medication could reduce the risk of perinatal HIV transmission from about 25% to 8% did not mean that plaintiff was not substantially limited in the major life activity of reproduction).

132. Taylor v. Phoenixville School District, 184 F.3d 296, 308-309 (3d Cir. 1999) (secretary who took lithium for her bipolar disorder raised a fact issue regarding whether she had a disability even after taking medication)

133. See, e.g., Barnett v. Revere Smelting & Refining Corp., 1999 U.S. Dist. LEXIS 16347 (S.D. N.Y. 1999) (question of fact whether a refinery worker with heart condition was substantially limited in major life activities even with medication, since he asserted that he remained substantially limited in breathing and testified that he continued to experience chest pain and breathing problems); Franklin v. Consolidated Edison Company of New York, 1999 U.S. Dist. LEXIS 15582 (S.D. N.Y. 1999) (an attorney with a seizure condition was substantially limited in the major life activities of sleeping and working where medication caused sedation and insomnia, had to be taken for the rest of her life, and resulted in the inability to perform early morning work, preventing the performance of a class or broad range of jobs); Herbst v. General Accident Insurance Company, 1999 U.S. Dist. LEXIS 15807 (E.D. Penn. 1999) (in light of an attorney's surgery, angina attacks, shortness of breath, chest pains, loss of concentration, and continuing medical attention, there was a question of fact as to whether his medical condition substantially limited the major life activity of working); Fjellestad v. Pizza Hut, 188 F.3d 944 (8th Cir. 1999) (work restrictions imposed by doctors--no more than 35 to 40 hours per week and no more than three consecutive work days--create triable issue of fact as to whether impairments substantially restricted the condition, manner or duration in which she could work; summary judgment for defendant reversed); Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134 (D. Hawaii 1999) (question of fact raised whether plaintiff with heart ailments and lung cancer was substantially limited in major life activities of walking and standing, since despite chemotherapy, she was unable to stand without pain); Worthington v. City of New Haven, 1999 U.S. Dist. LEXIS 16104 (D. Conn. 1999) (account clerk's multiple orthopedic injuries substantially limited walking, standing, and reaching, since plaintiff used a cane, and she has great difficulty reaching above her head and standing for any extended period of time, as compared to the average person in the general population); Wheaton v. Ogden Newspapers, Inc., 1999 U.S. Dist. LEXIS 15841 (N.D. Iowa 1999) (question of fact whether bindery worker was substantially limited in lifting and standing, since back condition was permanent, physician imposed unconditional ten-pound lifting restriction, and physician opined that 90 percent of population would have better ability to lift and stand); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032 (D. Ariz. 1999), (sufficient evidence that plaintiff was substantially limited in hearing, based on a "mild to moderate" hearing loss, and difficulty hearing if more than one person was speaking at a time, or in any setting with a great deal of background noise, even taking into account the use of several measures to compensate); Berk v. Bates Advertising USA, Inc., 25 F. Supp. 2d 265 (S.D. N.Y. 1998) (cancer and possibility of its recurrence substantially limited reproduction by making pregnancy risky and by making hysterectomy advisable); Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737 (N.D. Ill. 1998) (even if viewed in its treated from, diabetes substantially limited eating and waste elimination; the plaintiff had to eat constatntly, had to switch foods if blood sugar fluctuated, had to self-inject insulin several times a day, and had to urinate constantly to the point of dehydration or risk "soiling" herself).

But cf. Todd v. Academy Corp., 57 F. Supp.2d 448 (S.D. Tex. 1999) (granting summary judgment against a stocker with lifelong epilepsy, finding that he was limited only during seizures, which in his medicated state only occurred eight times in five months for 5-15 seconds each; court recognized that his medication was known to create limitations on thinking and learning, but it was not clear that this plaintiff had actually experienced a substantial limitation on these functions; thus, evidence on side effects was too general and hypothetical to satisfy Sutton). Note that the plaintiff did not allege a record of a disability, or that he was regarded as disabled, which theoretically could have led to a different result. Compare, for example, EEOC v. R.J. Gallagher Company, 181 F.3d 654 (5th Cir. 1999).

134. Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(III) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

135. If possible, a plaintiff should not rely on proving a disability solely by the limitations on working.

136. Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2151, 144 L. Ed. 2d 450, 468 (1999) (following EEOC guidance).

137. 29 C.F.R. § 1630.2(j)(3)(ii). See also Leslie v. St. Vincent New Hope, Inc., 916 F. Supp. 879, 884-885 (S.D. Ind. 1996).

138. 29 C.F.R. pt. 1630 App. § 1630.2(j); Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1, 12 (1^st Cir. 1999). But cf. Duncan v. Washington Metropolitan Area Transit Authority, ___ F.3d ___, 2000 U.S. App. LEXIS 1020 (D.C. Cir. 2000), in which the court seemed to require the testimony of a vocational expert whenever the major life activity of working is implicated.

139. Haysman v. Food Lion, 893 F. Supp. 1092 (S.D. Ga. 1995) (vocational expert's testimony that plaintiff precluded from 10% of all jobs in national economy is enough to preclude summary judgment); Scharff v. Frank, 791 F. Supp. 182 (S.D. Ohio 1991) (summary judgment denied because vocational expert testified that plaintiff would be prevented from performing one-half of unskilled jobs in local economy). Some courts seem to require such vocational testimony, Duncan v. Washington Metropolitan Area Transit Authority, ___ F.3d ___, 2000 U.S. App. LEXIS 1020 (D.C. Cir. 2000). Others have rejected such testimony if it is merely conclusory. See, e.g., McKay v. Toyota Motor Mfg. USA, Inc., 878 F. Supp. 1012 (E.D. Ky. 1995).

140. Doane v. Omaha, 115 F.3d 624, 628 (8^th Cir. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 693, 139 L. Ed. 2d 638 (1998) (police chief testified that he recommended rejecting plaintiff's application because he perceived plaintiff's vision problems as significant); Garza v. Abbott Laboratories, 940 F. Supp. 1227 (N.D. Ill. 1996) (employer's placement director admitted plaintiff was not able to perform any of 100 jobs in the company); EEOC v. Chrysler Corp., 917 F. Supp. 1164, 1168-1169 (E.D. Mich. 1996) (employer representative testified that plaintiff's failure to pass medical exam disqualified him from numerous other jobs besides the one applied for).

141. Kohnke v. Delta Airlines, Inc., 1995 U.S. Dist. LEXIS 12188*16-18 (N.D. Ill. 1995) (plaintiff produced sufficient evidence of a record of a disability, and that the employer may have regarded his impairment as preventing him from performing several jobs within customer service agent classification, and therefore believed that he was disqualified him from a broad class of jobs). Note, however, that the law should not require proof that the plaintiff has been denied other jobs in order to be "regarded as" disabled. Cook v. State of Rhode Island, 10 F.3d 17, 25-26 (1^st Cir. 1993) (Rehabilitation Act).

142. 29 C.F.R. pt. 1630 App. § 1630.2(j) (multiple impairments that combine to substantially limit one or more of an individual's major life activities also constitute disability); EEOC Compliance Manual § 902.4(e), online at <http://www.eeoc.gov/docs/902cm.html>.

143. Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(IV)(B) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

144. McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9^th Cir. 1999) (plaintiff's testimony about impotence was sufficient to raise a fact issue for trial); Katz v. City Metal Co., 87 F.3d 26, 33 (1^st Cir. 1996) ("Even if medical expert testimony were required here to permit the jury to find that [the plaintiff] was suffering from a continuing serious heart condition, the jury certainly did not need medical testimony in making its own judgment as to what the employer may have perceived, rightly or wrongly, about [the plaintiff's] condition."); United States v. City and County of Denver, 49 F. Supp.2d 1233, 1239 (D. Colo. 1999), affirmed in part and reversed in part (on other grounds) sub nom Davoll v. Webb, 194 F.3d 1116 (10^th Cir. 1999).

See also Hood v. Diamond Products, Inc., 658 N.E.2d 738, 742 (Ohio 1996) (court stated that while "the better practice in this type of situation would have been to submit expert medical testimony, we do not believe that under the circumstances of this particular case such testimony was required"); Seaman v. C.S.P.H., Inc., 1997 U.S. Dist. LEXIS 21177*31-32 (N.D. Tex. 1997) (plaintiff's testimony that he had trouble sleeping, and that his physician told him that this problem was partially attributable to his mental disorder, was sufficient evidence to survive summary judgment, at least when there was consistent information in the medical records in evidence).

But cf. Sabrah v. Lucent Technologies, Inc., 1998 U.S. Dist. LEXIS 17906*30-31 (N.D. Tex. 1998). Also compare Duncan v. Washington Metropolitan Area Transit Authority, ___ F.3d ___, 2000 U.S. App. LEXIS 1020 (D.C. Cir. 2000), in which the court seemed to require the testimony of a vocational expert whenever the major life activity of working is implicated. Also note that the lack of a medical expert may make other kinds of evidence imperative. Compare McCleary v. National Cold Storage, Inc., 67 F. Supp. 2d 1288, 1302 n.4 (D. Kan. 1999).

145. See, e.g., Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 748 (N.D. Ill. 1998) (distinguishing other cases on the basis of their lack of expert testimony).

146. Compare Muller v. Costello, 187 F.3d 298, 314 (2d Cir. 1999).

147. McCleary v. National Cold Storage, Inc., 67 F. Supp. 2d 1288, 1299 (D. Kan. 1999).

148. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

149. Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

150. ADA claims based on MCS have typically been unsuccessful to date. Some courts find inadequate evidence of its existence, and exclude evidence based on a Daubert challenge, e.g. Summers v. Missouri-Pacific Railroad, 132 F. Supp. 2d 599 (D. Mo. 1998) (evidence of MCS inadmissible under Daubert for lack of scientific foundation; summary judgment granted defendant); Coffee v. County of Hennepin, 23 F. Supp. 2d 1081 (D. Minn. 1998) (similar). Other courts base the result on inadequate evidence of a substantially limiting impairment. See, e.g., Keck v. New York State Office of Alcoholism and Substance Abuse, 10 F. Supp. 2d 194 (N.D. N.Y. 1998) (summary judgment granted because there was no evidence that MCS substantially limits a major life activity); Minor v. Stanford University, 1999 U.S. Dist. LEXIS 9135 (N.D. Cal. 1999) (similar).

151. EEOC v. Rockwell Int