Bonnie Poitras Tucker, J.D.
Professor of Law
Arizona State University College of Law
Reprinted with Permission
Welcome to the strange world created by the United States Supreme Court on June 22, 1999 (Sutton v. United Air Lines, Murphy v. United Parcel Service, Albertsons v. Kirkingburg):
Once upon a time there lived identical twin sisters, Amy and Betty. When the sisters were in their early twenties they began losing their ability to hear due to a heretofore unknown genetic disorder. By the age of 25 both sisters were deaf. The sisters made very different decisions with respect to the manner in which they would cope with their deafness.
Amy decided to have a cochlear implant – - a surgically implanted device that is capable of permitting some people who are deaf to “hear” via electrically stimulated electrodes placed inside the cochlea.. Because Amy heard normally for twenty years, and because she had only been hearing-impaired for a few years and deaf for less than one year, her implant was very successful (much more successful than it would have been had Amy been deaf all her life). With the assistance of specialized auditory training, Amy learned to train her brain to adapt to the new form of sound she heard via her implant, a process that took considerable time and effort. As a result of this training and work, Amy was able to understand speech and communicate normally with others, she could hear on the telephone, and she could understand movies, plays and lectures without assistance. For the most part, when Amy used her implant she could function as if she were hearing, but the manner in which she heard was very different from the way normally hearing people hear.
Betty, to the contrary, declined to have a cochlear implant. She did not want to have surgery, and she did not want to spend the necessary time and energy retraining her brain to adapt to a new type of sound. Betty learned sign language and made new deaf friends who signed. She bought a TDD (typewriter telephone), and used the telephone only with other people who had TDDs or via a relay service (where an operator acts as a live conduit between deaf and hearing telephone users — typing words for the deaf person and speaking words for the hearing person). Betty relied on the services of sign language interpreters when she wanted to – or was required to – speak with people who do not know sign language.
Amy and Betty were both trained chemists. They applied for jobs as chemists with Small-Chem Company, a company with about fifty employees engaged in innovative cancer research performed in a laboratory setting. Small-Chem’s president, JoJo Bozo, interviewed them individually.
When interviewing Amy, JoJo asked about her visible hearing device (JoJo had never seen an implant before and didn’t know what it was). Amy explained that she was deaf and the device was a cochlear implant that allowed her to hear very well. Amy told JoJo that she would not require any job accommodations for her deafness, since with her implant she could hear all environmental sounds, talk on the telephone, and communicate easily with everyone at the workplace.
Betty was accompanied at the interview by a sign language interpreter, who interpreted everything JoJo said. Betty told JoJo that she would require some job accommodations for her deafness; she requested that Small-Chem: (i) buy a TDD so that Betty could make work-related phone calls using a relay service provided by the state; (ii) provide Betty with a sign language interpreter during weekly staff meetings and all other meetings and situations in which she had to confer with supervisors or coworkers; and (iii) provide Betty with written copies of all instructions given orally to the chemists. Betty said that during casual, unofficial communications with her supervisors and co-workers, people could write notes to her.
JoJo refused to hire either Amy or Betty, expressly because of their deafness.
JoJo told Amy that Small-Chem was a small company and its employees were an unusually close-knit group – the employees were all friends and the atmosphere in the laboratory was very congenial. JoJo said that he was “put-off” by Amy’s visible implant and her deafness, and he thought his chemists would be equally put-off. JoJo also said that he, and the company’s chemists, could not help but have nagging worries that Amy might miss something important that was said and cause harm to the project. Even though he realized – intellectually– that Amy would probably NOT miss any more than any other chemist would miss, JoJo said, the very words ‘deaf’ and ‘implant’ carried negative connotations and fears, however irrational. JoJo explained that Amy’s “very different” presence in this small group of tightly knit employees would cause a jarring impact and affect the cohesiveness, and hence the productivity, of the group. JoJo recommended that Amy get a job at a bigger company, where there were so many chemists that the presence of one who was different would not be so intrusive, or at a different small company where the employees did not comprise such a uniquely close group.
JoJo expressed similar concerns to Betty, stating that Betty’s presence would be even more off-putting and disruptive due to the necessity of having interpreters present and the need to write notes. Further, JoJo said that it was not reasonable to expect the company to pay for interpreters at all meetings between Betty and her supervisors or co-workers. JoJo explained that meetings were often called on the spur of the moment, and that to have an interpreter available for on-the-spot meetings the company would have to hire a full time interpreter at an exorbitant cost.
Amy and Betty were dismayed. Each felt that Small-Chem’s refusal to hire her because of her deafness constituted discrimination prohibited by Title I of the Americans with Disabilities Act (ADA), which prohibits discrimination in the workplace on the basis of disability. Amy felt that the unwillingness or inability of JoJo to disregard irrational concerns that she might miss something important perpetuated the very stereotypes or myths about deafness the ADA was intended to alleviate. Amy believed that JoJo was obligated to focus solely on her actual, individual ability to hear with her implant. Further, Amy believed that the refusal to hire her because other employees might find her implant and deafness “off-putting” constituted a clear violation of the ADA.
Betty had similar objections. In addition, Betty believed that the provision of interpreters for all meetings was a reasonable accommodation that the ADA required Small-Chem to provide.
Amy and Betty went together to visit an attorney, expecting to resolve these issues legally and thence live happily ever after. Alas, they discovered that — in the world created by the Supreme Court– only Betty, but not Amy, could challenge Small-Chem’s discriminatory conduct in violation of the ADA!
“That cannot be right,” exclaimed Amy. ” I am the one who did everything possible to reduce the effects of my deafness, so that: (i) I”d be able to communicate with everyone, not just people who use sign language; (ii) I’d be able to use the telephone without help; (iii) I would NOT have to rely on interpreters or on written notes or instructions to understand what is said in the workplace or elsewhere; and (iv) an employer, or anyone else, would NOT have to incur expenditures to accommodate my deafness. Yet you are telling me that the Supreme Court has ruled that the result of my substantial efforts is that an employer can discriminate against me at will because I am deaf! How can that be?”
The poor attorney could barely stammer his reply. “Well, you see,” he struggled, “the Supreme Court says that now you are not disabled so you are not protected by the ADA. In order to be disabled under the ADA you must fall within one of three prongs. You must either: (1) have a physical impairment that substantially limits one or more of your major life activities; (2) be regarded as having such an impairment; or (3) have a record of such an impairment. In the world created by the Supreme Court you do not fall within in any of those prongs.”
“What do you mean, I am not disabled?” Amy said with a laugh. “Of course I am disabled! I am deaf.”
“You are only deaf WITHOUT your implant,” responded the attorney. “But WITH your implant you are no longer deaf, since when you wear your implant you are no longer substantially limited in the ability to hear. And in the world created by the Supreme Court, we must decide whether you are substantially limited in the ability to hear WITH your implant, not WITHOUT your implant.”
“But didn’t Congress say that, since the ADA was enacted to eliminate discrimination on the basis of stereotypical beliefs or prejudices about people with disabilities, we must decide whether an individual is disabled WITHOUT considering medication or devices that might reduce the effects of a physical impairment?” asked Amy. “Didn’t Congress say that we should decide whether I am substantially limited in the ability to hear WITHOUT my implant?”
“Oh dear,” answered the attorney. “Yes, Congress DID say that. The Congressional Reports explain that the ADA is intended to prevent people with physical impairments or medical conditions — whether corrected or not — from being discriminated on the basis of those conditions due to erroneous stereotypes or prejudice. Some of the Congressional Reports on the ADA say specifically that a person with a hearing loss is substantially limited in the ability to hear – and is thus disabled under the ADA — even if the hearing loss is correctable by the use of hearing aids.”
“Well, that settles the question, doesn’t it?” snapped Amy. “How can the Supreme Court overrule what Congress said?”
“Now, now, don’t get all excited,” exhorted the attorney. “You see, the Supreme Court said that Congress did not say that in the ADA itself. According to the Supreme Court, the ADA itself clearly says that we must decide whether someone is disabled WITH the use of measures that may reduce the effects of a physical impairment. The Supreme Court said that since the language of the ADA is clear, we cannot look at the Congressional Reports prepared when the ADA was being enacted for guidance on the question of how to determine if a person is substantially limited in a major life activity.”
“Oh, I’m sorry,” apologized Amy. “I read the ADA carefully, but I missed that completely. Where in the ADA does it say that?”
“Oh, no need to apologize,” said the attorney. “The ADA does not say that specifically, so you could not have found that wording. In fact, eight United States Courts of Appeals (the First, Second, Third, Fifth, Seventh, Eighth, Ninth and Eleventh Circuits), the Equal Employment Opportunity Commission (charged by Congress with responsibility to promulgate regulations under Title I of the ADA), and the U.S. Department of Justice (charged by Congress with responsibility to promulgate regulations under Titles II and III of the ADA), made the same mistake that you did. Those courts and agencies could not find that language in the ADA either. But the Supreme Court said that, when one reads the ENTIRE ADA, the totality of the words clearly imply that we must determine whether an individual is substantially limited WITH the use of mitigating measures such as your implant. The Court did not explain how so many people have misunderstood that clear language.”
“Well, OK,” sighed Amy. “But even though we have to decide whether I am disabled WITH my implant, rather than WITHOUT my implant, I am still deaf, and thus disabled. Because even with my implant I do not hear the same way that hearing people hear,” said Amy. “I hear VERY differently. I have trained my brain to understand the very different sounds that I hear, so that I am able to understand just about everything that hearing people can understand. But I do not hear in the same manner that hearing people hear. My ability to hear is substantially different from the ability of others to hear.”
“Unfortunately, in the world created by the Supreme Court that is not enough to satisfy the definition of disability under the ADA,” stammered the attorney. “In Albertsons v. Kirkingburg the Supreme Court ruled that a significant “difference” in the manner in which an individual is able to perform a major life activity, such as seeing in that case or hearing in this case, is not the same as a significant “limitation” on the ability to perform that major life activity.”
Amy was near tears. “But JoJo told me that I was not being given a job at Small-Chem because I was deaf and because I used a cochlear implant to hear,” Amy whispered. “JoJo said over and over again that the reason he would not hire me was because my presence as a deaf person would interfere with employee dynamics. So JoJo REGARDED me as being disabled. Doesn’t that means that I fall in the second prong of the ADA’s definition of a person with a disability?
“Um, well….um… you are right that an individual is disabled under the ADA if an employer regards her as being disabled, that is, if an employer regards her as being substantially limited in the ability to perform a major life activity,” responded the attorney. “The question is, what is the major life activity that JoJo regarded you as being substantially limited in the ability to perform?”
“The trouble is,” continued the attorney, ” that JoJo did NOT regard you as substantially limited in the ability to hear. He recognized that you could hear very well, and that fears that you might miss something were probably irrational. And, while the Supreme Court recognized that “working” MAY be considered a major life activity, JoJo did not regard you as being substantially limited in your general ability to work. JoJo only regarded you as being substantially limited in your ability to work at one company– Small-Chem, a very small company with a uniquely close-knit group of employees whose unusual cohesiveness would be threatened by the jarring disruption of a chemist who is ‘different.’ JoJo specifically said that you could work in a large company, or even at another small company where employee cohesiveness and dynamics is not crucial. In the world created by the Supreme Court, an employer does not regard a person as significantly limited in the ability to work by simply regarding that person as being unable to work at one job, or at a small class of jobs.”
“I cannot be understanding you correctly,” said Amy, her voice rising. “It sounds as though you are saying that JoJo can get around the ADA just by telling me that I can work for another company! If that is true, any smart employer will be able to discriminate on the basis of disability.”
“That is the way it is in the world created by the Supreme Court,” the attorney sheepishly replied.
“Wait, let’s think about this a minute,” begged Amy. “Are you telling me that the Supreme Court says that only way I can be protected by the ADA is if I do not take steps to help me to hear, but deliberately remain unable to hear so that I have to rely on interpreters to communicate?”
The attorney blushed. “It seems a bit silly to phrase it that way,” he replied, “but…. yes, I guess that is what I am telling you.”
Amy thought for a minute. “But it would be expensive for Small-Chem to have interpreters at the ready at all times so that Betty – or me if I didn’t have an implant or use the one I have – could participate in unplanned meetings. Isn’t it possible that a court would find that such an accommodation was not reasonable, and thus rule that Small-Chem did not have to hire Betty and provide that accommodation?”
“In my opinion it is more than possible,” replied the attorney. “It is probable.”
“What you are saying,” exclaimed Amy, “is that to be protected by the ADA I have to be so disabled that I am not able to get a job- at least not this job- because the accommodations I need to perform the job are not reasonable and do not have to be provided. Without those accommodations I am not qualified to perform the job.”
“It’s a catch-22 situation, isn’t it,” remarked the attorney.
“There must be a way around this,” insisted Amy. “What about the third way that a person can be found disabled under the ADA? Aren’t I disabled under the ADA because I have a “record” of being substantially limited in the ability to hear? Even if I am no longer considered to be substantially limited in the ability to hear because I have an implant, I was unable to hear at all for at least a year.”
“No, that won’t work either,” stuttered the attorney. “You would only meet the test of having a record of a disability if your deafness had been totally cured. Suppose, for example, that you could have surgery to replace the nerves in your ear that do not work, and that after you had that surgery you were no longer deaf but could hear normally. If JoJo refused to hire you because you were once deaf and he was afraid you would become deaf again, you would have a record of a disability and would be protected from such discrimination under the ADA.”
“Let me make sure I understand,” said Amy. “If my deafness is only ameliorated or partially corrected – as it was by my implant, I am not protected by the ADA, and an employer can discriminate against me because of my deafness. But if my deafness is completely cured, and I am discriminated against because of my PAST deafness, I am protected by the ADA?”
“That is the law in the world created by the Supreme Court, ” replied the attorney.
“Then, since no one has discovered a way to cure my deafness,” said Amy, “to be protected from discrimination under the ADA my only option is to stop wearing my implant and try to find a job where communication is minimal so I will not require unreasonable accommodations. But will the Supreme Court allow me to be protected by the ADA if I refuse to use my implant?”
The attorney thought for a minute. “I guess that since the Court cannot force Betty to have an implant, the Court cannot force you to use your implant,” he finally said.
“If I don’t use my implant,” mused Amy, “the Court will prohibit an employer from refusing to hire me because of my deafness, AND will force the employer to provide me with ‘reasonable’ accommodations for my deafness. Those ‘reasonable’ accommodations can cost the employer quite a bit of money. Wouldn’t it make more sense for the Court to prohibit an employer from refusing to hire me because of my deafness — regardless of whether I use my implant, so that I use wear my implant at work and perform my job without any special accommodations?”
The attorney did not respond.
“What a strange world the Supreme Court has created,” cried Amy and the attorney in unison.
