The Definition of Disability Under the ADA and §504 presented 
by Brian East on March 20, 2002 

AARON:  good afternoon, my name is Aaron McCullough and
I'm with the ILRU in Houston.  We want to welcome you to a
Webcast on the Definition of Disability under the Americans
with Disabilities Act.

Before we get started, I want to acknowledge that the support
for this Webcast is provided by the National Institute on
Disability and Rehabilitation Research's effort to promote the
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I'd like to introduce today's presenter.

His name is Brian East.

He was a 1977 graduate from the University of Texas School of
Law, and began practice   private practice in Austin, Texas, in
1982.  Concentrating his practice in employment and civil
rights law.

He now works for Advocacy, Inc., the Texas protection and
advocacy system for persons with disabilities.  He is a senior
attorney in their legal services unit and he provides technical
assistance to advocates and representation to persons with
disabilities in a variety of arenas.

He is a frequent presenter on ADA issues and brings to us
today a presentation of the definition of disability under the
ADA and Section 504 of the Rehabilitation Act.  I'd like to
thank you again for presenting today Mr. East.


 BRIAN: Thanks, Aaron, thanks for the introduction.  As the
title of the presentation suggests, I'm going to be talking about
the definition of disability under the ADA and 504. These are
the two principle federal laws protecting people with
disabilities and the ADA of course is short for the Americans
with Disabilities Act that was signed into law by president bush
in 1990 and Section 504 is the common name for Section 504
of the Rehabilitation Act of 1973.

As I suggested, these are the two main federal laws that protect
persons with disabilities, there are also similar laws in many
states and they vary in their coverage and I'm going to discuss
some of these state laws briefly at the end of this presentation.

Let me note that most of the cases and other authorities that I
included in the paper and that I'm going to be discussing deal
with the ADA, but since the definition of disability under the
ADA and Section 504 are the same, those authorities are
generally applicable to both.

Before we jump into the paper, and I'm going to be following it
generally, I want to make a couple of remarks about the ADA,
and let me start with a couple of quotations.

The Americans with Disabilities Act represents the full
flowering of our democratic principles. This legislation is
comprehensive because the barriers faced by individuals with
disabilities are wide ranging.

The Americans with Disabilities Act presents us with an
historic opportunity.  It signals the end to the unjustified
segregation and exclusion of persons with disabilities from
the mainstream of American life.

As a declaration of independence has been a beacon for people
all over the world seeking freedom, it is my hope that the
Americans with Disabilities Act will likewise come to be a
model for the choices and opportunities of future generations
around the world.

These were some of the comments by president bush when he
signed the ADA into law in 1990. And I was going to suggest
as we go through this analysis today that you compare the goals
that he mentioned with the reality of the laws interpretation by
the court so far and the ways in which the interpretations have
and have not lived up to those goals.

Okay, let's jump into the paper.  I'm going to start with roman
numeral II, the definition. I suggest there are three prongs, the
first is that a disability is defined as, one, a mental or physical
impairment that substantially limits one or more major life
activities.

And this is sort of the mantra that we always have to have in
the back of our mind when we are assessing whether someone
has a disability that's protected by the ADA or 504. That is
impairment that substantially limits a major life activity. Those
are the three elements set out in Part B; but the act also protects
someone who has a record of an impairment that substantially
limits a major life activity as well as someone who is regarded
as having an impairment that substantially limits one or more
major life activities.

So that's what the law says, and now we have to try to figure
out what it actually means. The first source of guidance that we
have to look for -- look towards are the 504 regulations, and
one of the things that the supreme court told us in the recent
Toyota Motors case is that the Section 504 guidelines
regulations are entitled to deference in determining who is a
person with disabilities. And there is a couple of reasons for
that:  one is that Congress copied the ADA's definition of
disability from 504's definition; and that suggested to the court
that Congress intended to carry forward the previous agency
guidance.  And the second is that Congress specifically said in
the ADA that it was not to be construed to provide any less
protection than 504 did.  So 504 is the floor.

So anyway, for those reasons the 504 regulations, which are
cited in Part 2C of the paper are a valuable source of guidance.
A second source of guidance are the regulations designed to
enforce the ADA itself.

The Supreme Court has not been clear on the amount of
deference it believes are due to these regulations particularly
the ones discussing the definition of disability under the ADA.
And let me just back up for a minute and make sure we're all
on the same page. The three most commonly cited portions of
the ADA are Titles I., II, and III, Title I deals with employment
discrimination, Title II deals with discrimination by public
entities, meaning state and local government agencies, and
Title III deals with discrimination by private businesses, what
the ADA calls public accommodations. And all of these titles --
all the titles of the ADA share the same definition of disability.

Title I regulations were written by the EEOC, and the
regulations enforcing Titles II and III by the Department of
Justice. But the Supreme Court has noted that Congress did not
clearly give authority to write regulations under the ADA to
any agency with regard to the definition of disability, and that's
one reason why it has resisted stating exactly how much
deference we're to give.

But that's sort of the long legal position, the reality is that most
courts follow the ADA regulations and they are a valuable
source of guidance.

Let me move on now to part 3 of the paper which is
impairment and it sets out the definition of impairment.
It's the same in both the 504 and the ADA regulations, all the
ADA regulations.  And the only point I want to make I think at
this point is that impairment is a pretty broad term and it is
loosely analogous to diagnosis. And I think this raises one of
the main problems that we see in the case law under the ADA
and 504, and that is people assuming that diagnosis is the
equivalent of a disability. 

And as the courts have interpreted the ADA, that's not the case,
and so if you have a diagnosis of something that is clearly a
disability to the layperson, perhaps a disability under social
security or under a private insurance policy, still that diagnosis
is not enough by itself to show disability.

You still -- because all that shows is impairment. You still have
to show the second and third part, which is that impairment
substantially limits one or more major life activities.

And that's another point that was clarified in Toyota, where the
court expressly said it is insufficient to merely submit evidence
of a medical diagnosis of an impairment. So my point here is
that impairment is a broad term, it's broad under the definition,
but it's also not enough to show disability and it's important to
keep in mind.

I'm going to move on now to part 4 of the paper dealing with
major life activities, and I'm going to try and get through some
of this, but after the end of this section I'm going to stop and
ask for any questions on anything that I've talked about so far.
So feel free to start those coming in. 

All right, so major life activities, what is a major life activity?
Like with regard to impairment, the statute itself, the statutes
themselves do not define it; but the regulations are consistent
and they do give a list of some examples of major life
activities, the ones they mention are:  caring for oneself,
performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working.  So we're pretty
confident that those are major life activities, and the question
is, you know, what else is and how do we figure out the answer
to that question?

And the answer is not easy to come up with. We do know that
list of major life activities is not intended to be exhaustive, but
merely to illustrate what major life activities are. In this portion
of the paper, part 4, I cite to some guidance at the fifth circuit,
that is the court of appeals over Texas where I am and our
neighboring states of Louisiana and Mississippi, that it has
given in assessing whether someone -- something is a major
life activity.  And it starts off by saying that major means
comparative importance.

Again, we know from Toyota now that that's exactly the same
analysis that the Supreme Court has. They say that major
means important.

The fifth circuit suggests that activities necessary to
self-sustenance or support, social interaction, various other
things that are in the paper are important. Now, that was
written or that opinion came out prior to Toyota, but at least in
this circuit, that's good law until someone tells us otherwise,
and I suspect that it is generally good law and will remain good
law even after Toyota because there isn't any necessary conflict
that I see between the two.

The Supreme Court in Bragdon vs. Abbott held that
reproduction was a major life activity. That's not one that was
on the list in the regulations, but it says it is a major life activity
and one of the arguments opposing that position that the court
heard was that reproduction isn't something that happens every
day, and the functions leading up to it aren't something that
necessarily happen every day and that they may not be
experienced by large portions of the population, and
the Supreme Court said that that didn't matter, that major life
activity is not limited to something that is public, economic or
daily in character.

So we had some guidance from Bragdon about what a major
life activity is. In Toyota, obviously, the stress of the court was
a little bit different, and the court held that performing manual
tasks can be a major life activity, again, remember it was one of
the listed ones in the regulations, so it can be a major life
activity, but only if the manual tasks in question are central to
daily life.

And so the court said that the activities that the appellate court
in Toyota had focused on were not central to daily life and
would not justify a finding of disability. And instead suggested
that the kinds of manual tasks that are important to daily life
are those that involve personal hygiene, like toothbrushing and
bathing and personal or household chores. So right off the bat,
there seems to be attention between Bragdon where it says it's
not required that an activity have a daily dimension, and Toyota
which seems to focus on this central to daily life test.

It seems to me that there are three possible interpretations for
what the Supreme Court is doing in Toyota, and the
interpretations depend on whether the court is trying to flesh
out what certain of the major life activities mean, whether it's
trying to limit what major life activities are, or whether it's
trying to speak to what substantial limitations of major life
activities are. 

So let me take the first few and that is what the Supreme Court
is doing in Toyota is trying to fresh out what certain vague
major life activities really mean and in favor of this argument,
what you can say is that this is probably all that the Supreme
Court actually held or decided, that any other interpretation
flows from language that might be in the opinion, but which
wasn't necessary to its decision.

So in this first view, the theory is that what the court is doing is
trying to distinguish between certain kinds of major life
activities. On the one hand is those that it referred to in Toyota
as basic abilities like walking, seeing and hearing and for these
it doesn't require any particular showing of an affect on daily
life, but in contrast to those basic abilities are some major life
activities or alleged major life activities like performing manual
tasks which was the one they were dealing with in Toyota
where it's really a collection of smaller activities, manual tasks
are really a collection of smaller tasks, some of which may be
important and some of which aren't.

And so the court was trying to figure out a test that it could
come up with to select which tasks are important enough for
manual -- performing manual tasks to be a major life activity.
And so the idea is under the test that the court below had
formulated where it talked about a class of manual tasks, you
could say I'm unable to do the class of manual tasks that
involves my pinkie, and the court -- you know, the court's fear
obviously is that this could be a fairly minimal affect on a
person's life but still within this the court below had come up
with. They threw that out and said we are looking to manual
tasks that are important to daily life.

That's the first view.

The second view is that what the courts -- that the court is
drawing a different distinction and that all activities have to be
central to daily life in order to qualify as major life activities
and then to try and make it consistent with Bragdon, they have
to be central to daily life, but they may not have to be
performed daily.

That's a pretty perhaps hair splitting argument. I haven't seen
that in that exact analysis in any court, but there are a couple of
cases that have cited Toyota that seem to say that after Toyota,
major life activities are only those activities that are of central
importance to daily life. And those cases are not in the paper
because they're quite recent.

One is Dorn vs. Potter and the other is Mink vs. Wal-mart.
That's at least what they say, whether they are holding or not I'll
leave to someone else.


 AARON: Mr. East, in those two cases and in your opinion, do
you think there is going to be any guidance offered by the
courts in the upcoming cases as to what those issues of central
importance are, the daily activities of central importance are? It
seems open to a fairly expansive view.


 BRIAN: Yeah, and frankly, I think the answer is no. I don't
think at least in the short run we're going to get much more
from the Supreme Court on this point; and I base that in part on
some of the cases that they have -- the ADA cases they have in
front of them or have recently refused to hear and I'll talk about
that also at the end if we have time.

And on the fact that just historically they don't tend to write
opinions on the same area very frequently.

So my guess is that we will not hear much more about this
particular aspect from the Supreme Court in the near future.
Though I think what that means is it's going to be left up to the
lower courts to analyze and figure out what they think the court
meant and how they're going to interpret cases in light of
Toyota, and I think some of them will be very expansive
because there are certainly some language in Toyota that
supports that and some of them will be very restrictive.
Many have been so far, and they'll be looking for the language
in Toyota and there is some that supports a restrictive analysis.
So my guess is not a lot more help from the Supreme Court in
the near future.

That also leaves open the possibility of Congress getting into
the act further and perhaps amending the law to clarify what it
intended was covered because I think we have some reason to
believe that what Congress thought it was passing is not the
same law that the Supreme Court seems to be interpreting in
some of these cases.


 AARON:  and given recent comments of some of the justices,
it would seem that's what they're driving at.


 BRIAN:  yeah, I think, you know, there was recently an article
quoting Justice O'Connor who's been an important swing vote
in ADA cases and a lot of other cases and her point was that the
ADA leaves a lot of questions unanswered and in her view was
perhaps quickly passed without the input of -- she mentioned
law professors. I think she's absolutely wrong about that, but
that's what she thinks. 

First of all, the Congress had considered the ADA and prior
versions of it for years. So it certainly wasn't quickly done and
there were in fact many law professors involved in the drafting
of it and when Justice O'Connor, and I'm sure she isn't the only
one, when they say that they're not sure what Congress meant, I
think that's only because in various cases they limit what they
will look at. I think if they are looking at everything they have
to draw from, the statute, the regulations, the legislative
history, and everything else, it's really pretty clear in a lot of
these cases whether Congress thought something was covered
or not, but the court hasn't always chosen to look at all those
sources.


 AARON:  could you expand on that? I think that might be
fairly illustrative because there seems to be a disconnect
between what advocates and people who work with people
with disabilities understand about the ADA and what this
Supreme Court seems to be saying, and what I hear you
touching on is that this court can selectively choose what to
look at.  Could you explain that process a little bit just about
how they take a case and review it just briefly?


 BRIAN:  yeah, well, there is a whole -- there is a whole legal
theory that certain people who are smarter than I am get
involved with in interpreting or rather in trying to analyze what
the Supreme Court does or should look at in interpreting acts of
Congress. And I've looked at some of those law review articles
and other articles and I don't fully follow them, but there are
apparently various schools of thought.

But what seems to be -- what seems to be what the current
court says it is interested in doing is, first of all, determining
what the intent of Congress is, and secondly, if at all possible,
divining that intent from the words of the statute and nothing
else.


 AARON:  so they don't look merely at the text of the law and
not at the debate on the floor of the house, the interpretation
offered through amicus briefs in any given case? They're
selecting what to look at?


 BRIAN:  that's right, and this certainly isn't the only court or
-- it certainly isn't the only court that does things that way, and
I'm not -- you know, I'm not expressing a personal opinion
about whether that's the right way to go or not, but right or
wrong, this court at least claims to decide as much as it can
based simply on the words. But I think they go way too far in
that for example, a good example is the Sutton case. I'm going
to talk about that in a few minutes.


 AARON:  good because we've got a few questions on that.


 BRIAN:  it talks about mitigating measures and in that case
the Supreme Court decided that in assessing disability we had
to consider whatever mitigating measures were being used.
That's clearly contrary to what there is in the legislative history
on that point and there is stuff directly on that point and that's
not what the legislative history suggested Congress intend and
it's not what the agencies that were given the power to enforce
it said that they understood Congress intended, but they wrote
into the regulations, but it was all based or a lot of it was based
on the tense used in the definition of disability. And so because
it said a person who has an impairment that substantially limits
and was written in what Justice O'Connor called the present
indicative tense, from that they determined it flowed that it had
to be something that was assessed at that moment, and if you
were using mitigating measures then that was supposed to
come in. 

Well, that's a big leap to me from, you know, trying to make
that result come from the verb tense. Particularly when you
have legislative history saying the opposite. So anyway, I don't
want to get bogged down in this because I certainly have no
particular insight into the Supreme Court, and they certainly
don't listen to me on anything; but I do think that, you know, it
is an important thing to consider, and I think that more and
more I hear people calling on or suggesting that Congress enter
into the debate again.

Because what little we've heard in Congress unofficially has
suggested they're not happy with the interpretations that the
court is making and I think, you know, obviously if the ADA is
opened up, there is all kinds of things -- all kinds of
adjustments that Congress could make to it and that's been
probably the reason why there hasn't been a bigger push for
change, but at some point, if the interpretations get too far
afield, that's going to be the only way to cure the problem.
So let me go back to trying the figure out what they're doing in
Toyota.

I talked about the view where they are your basic major life
activities and the ones that are collections of lesser activities
and for the second class, what we're going the look at is how
they affect daily life. The second view is that what the court is
saying is that ofer I major life activity has to be central
to daily life and so in the future when we're trying to decide
that, we have to look at whether it affects daily life.

The third view, I've seen a couple of judges in Minnesota take
and their interpretation seems to me that it's the furthest out
view, and that is it's saying that -- they think that Toyota is
saying that whatever the major life activities are, whether it's
sitting, standing, walking, whatever, that they can only be
substantially limiting if the limitation affects the ability to
perform some task in daily life.

I think that's the view in Phillip v. Ford Motor Company,
decide about ten days ago and Alexander vs. Northland cited
about a month before that. My best guess is that these last two
cases are just wrong and that's not what the Supreme Court
meant in Toyota. I think the point of all this discussion that
we've been having is that we're just going to have to see how
this all shakes out.

By the way, I did a search on Monday night to see how many
cases had dealt with Toyota, and there were 32 reported cases
that I could find citing to it. Most of them didn't attempt to
interpret it, but simply cited it or quoted it, but obviously this is
going to be a hot topic in the court.

At the last part of part 4 in the paper, I list some examples of
major life activities that various courts have come up with, and
I don't know how many there are, but probably 35 or 40, and I
looked at those with an eye towards Toyota in the last few days
and I think that most of those probably are major life activities
in light of Toyota.

Some of them have been disputed before, will continue to be
disputed, but I think most of them are probably consistent with
Toyota.

One of them is caring for oneself, and there has been several
courts that have mentioned that, both before and after Toyota,
and one court says that that encompasses normal activities of
daily living, including feeding oneself, driving, grooming and
cleaning home.

So those are some ideas of what might be major life activities.
By the way, if there is something that you want more
information about, feel free to contact me. I think at least the
description of who I am on the website has my e-mail address
and if for example you want some legal cases cited that deal
with some of these issues that aren't in the paper, let me know.

The last point I make in this section, part 4, on major life
activities is with regard to the life activity of working.

Now, in the Sutton case, which I've mentioned and also in
Toyota, the Supreme Court expressly refused to decide whether
working is a major life activity, but basically every court, both
before Sutton questioned it and after Sutton have questioned it.
Every lower court has said that working is a major life activity
and the 504 regulations that the Supreme Court said in Toyota
were due deference also say that it is a major life activity.
So I think that's a fairly safe bet at this point; but for reasons
that I'll talk about more in a couple of minutes, working is
probably the last major activity to consider when you're trying
to determine whether someone has a covered disability.

Let me stop there just for a moment, note that I'm at the end of
part 4 of the paper, and invite any questions that anybody might
have submitted on anything we've talked about so far,
impairment, major life activities. I'm going to talk some more
about Toyota, but anything to do with Toyota is fair game, too.


 AARON:  we did get an e-mail question asking what do you
think will happen now that Toyota v. Williams has been
reversed and remanded?


 BRIAN:  yeah, and I think that's a good question because so
much of the publicity that I have seen around Toyota suggested
that the court found that hader carpal tunnel was not a
disability, and that's not what the court did. What the court did
do was say the lower court focused on this wrong test for
determining which manual tasks were important to look at, and
because of that, we can't tell whether this person has a
disability or not. The courts below focused on the wrong
information. We know some of the things that we would
suggest should be looked at. There is some information in the
record that those were not problems for this particular client,
but we don't know the whole story because the court below
didn't use the right test. So we're sending it back to the courts
below to determine whether she has a disability and can
proceed, and so now the question of course is what is the court
below going to do when they get this case back?

And, you know, I sure wish I knew.

I don't know the answer, and, you know, I don't really have
anything to predict on, in part because the opinions in the
circuit court of appeals and in the Supreme Court describe the
evidence in the case, but typically courts of appeal are not
perfect or complete in their description of the evidence and it's
also possible that if this case goes all the way back to the trial
court, that the trial court may say, none of us knew what we
were supposed to be looking at, so there is further opportunity
for additional evidence to be submitted now that we do know
what we should be looking at.

And so we really don't know exactly what evidence is in the
record already and we don't know if the court below is going to
allow there to be other evidence submitted before making the
determination. So it's really hard to say what the outcome of
that remanned to the lower court is going to be.

Okay, I'm going to go on unless we have another question that
seems to fit here and I'm going to move onto part 5 of the paper
and talk about substantial limitations. And let me start out by
saying that this is the piece that is so often found lacking in the
cases that say that so and so doesn't have a disability.

Neither the ADA nor the Rehabilitation Act defines substantial
limitation, nor do the Rehabilitation Act regulations define it,
but the one set of regulations that does are the title I regulations
that EEOC has issued and again the court has twice now
refused to decide how much deference, if any, to give to that
definition, but has followed it in the absence of that decision as
have virtually all the lower courts that have considered the
issue. And so that definition is an important -- is important
guidance for us that it's the definition that the EEOC guidelines
that I have cited.

So what is a substantial limitation in a major life activity? 

Obviously if someone cannot do the activity at all, if you can
not walk or cannot see or cannot hear, then that's a substantial
limitation in those major life activities, but as Bragdon v.
Abbott told us, substantial limitations do not need to rise to the
level of utter inabilities. And so the second part of the test in
the regulations is being significantly restricted as to the
condition, manner or duration under which an individual can
perform the major life activity compared to the general
population.

And it also sets out various factors to consider, the nature and
severity of the impairment, the duration of it, et cetera, the long
term impact. Those things are set out in the paper.

So we have that guidance. We also know from the guidance
and from Toyota Motors that an impairment does not have to
be permanent to be a disability. Although it has to be long term.

So we know from the discussion so far and the guidance so far
for example that a cold or the influence or even a broken leg
that is expected to fully heal in six weeks or two months or
three months, those are not covered disabilities, but it doesn't
have to be permanent as long as it's long term, long term might
mean open-ended and it might mean something that varies in
severity that during certain portions it's quite severe and during
certain portions of the person's life it's not as severe and that's
going to vary for a long time.

So there is some information that I'm not going to read any
further on those points in the paper. Let me just highlight a
couple of things, it doesn't have to produce obvious or visible
symptoms. As I said, it doesn't have to be consistent throughout
the course, let's see. 

Here is another thing. This is something that bothers me and I
see it in several cases, and particularly when we're dealing with
major life activities besides working. What you'll often see is
the defendant who might be the employer or whoever it is,
most of these cases that we talk about are employment cases
only because that's what most of the cases are that are brought
in the courts.

So so much of the analysis we have is under Title I, the
employment section, although as I said they all share the same
definition.

So you'll see the employer say this person doesn't have a
disability even though, let's say, they can't hear, because they,
you know, they drive their kids to school, they work, or they
worked until we fired them, you know, they participate in PTA,
coached little league, all these things the person can do, and I
think that's exactly the wrong focus. I think the focus needs to
be on the things that the person cannot do because Congress
understood that people with disabilities can do a whole lot of
things, virtually everything, and that was the point that we don't
want to keep them out of the workplace and we don't want to
fire them because reality is people with disabilities can usually
do almost any job.

And so by focusing -- by saying this person actually does a lot
of things in their life, that is a given.  Everybody with a
disability does a lot of things in their life and that's the wrong
way to look at it and there are a couple of cases that make that
point that are cited in the paper, the finical case and the Belk
vs. Southwestern Bell case.

Another thing to mention is that a mayoren have several
impairments and no one by themselves may be substantially
limiting, but the combination of altogether may be.

Yeah, this is where I talk about some of the -- probably the
scariest language this Toyota, and that is where it says that
these definitions and it's referring to substantial limitation and
major life activity, quote, need to be interpreted strictly to
create a demanding standards for qualifying as disability.
And there is a problem with that because that invites courts to
be very restrictive even way beyond what the courts intended.

First of all, it's based on the introductory language, the findings
of Congress in the first section of ADA where they said there
are some 43 million Americans with disability.

And this goes back to how far they go on very little because
they refuse to look at the legislative history.

They basically say that because Congress said there were 43
million, then any definition we come up with, which might
mean that there are more than 43 million is obviously wrong.
Well, there are several things wrong with that.

I mean, going back to the fact that did Congress intend that this
was a limit on its definition, clearly not, but also, you know,
Congress was saying there are 43 million people with
disabilities and was referring to actual disabilities at that point,
although the statute covers people who are not in fact disabled,
but are perceived as having disabilities.

So the number protected is going to be much higher, but
regardless of all that, even if we assume as the Supreme Court
does that whatever definition, whatever interpretation these
terms we come up with, can't yield a total protected class that
exceeds 43 million, that was easy for them to do in Sutton
where they first did that because in Sutton the question was,
does a person with -- could a person with eyeglasses and the
eyeglasses fully correct their vision, would that person still be a
person with a disability?

And the Supreme Court said the number of people in the united
states who wear eyeglasses by itself exceeds 43 million. So
clearly, that couldn't have been what Congress meant. I mean,
and that can be disputed as I suggested; but in Toyota, they say
we have to interpret these things very strictly because of this 43
million figure and I think at most what they're really saying is
we have to interpret these terms strictly in light of the 43
million and one criticism I have of the court in Toyota is that it
used that language again without any suggestion that the courts
below or any other interpretation would in fact have resulted in
more than 43 million being protected.

So it's now using the 43 million figure as justification for a
limited interpretation without any showing that that's in fact
necessary to hold to the 43 million figure. In any event, I'm sure
that language is going to come back to haunt advocates and
persons with disabilities, that language about interpreting those
terms strictly.


 AARON:  that is fairly disturbing. We got a couple of
questions that came in via the e-mail. Are you prepared to take
those?


 BRIAN:  sure.


 AARON:  we have one, is there a distinction between a central
daily life activity and merely instrumental or secondary daily
life activity which the legal construct major life activity may in
part be based upon or is that a degree of importance analyzed
anywhere specifically in the case law?


 BRIAN:  I'm not sure I followed that question.


 AARON:  I'm not sure I did either.  I think what they're asking
is, is there some guidance on what is truly an essential life
activity and something that's more secondary? I guess maybe
for an example, relating to your community is one, being able
to be integrated within the community socially and then maybe
par taking in square dancing? I think this is a question of
degree.


 BRIAN:  yeah, and I agree -- I mean I think those are two
good examples where the first, it may not be in the way you
phrased it a major life activity, but it certainly is going to
implicate a major life activity, one or more, and therefore is
likely to be covered, someone who has substantial limitations
in that way, whereas the square dancing one is likely not to be
covered if that's the only thing you can't do.

But I don't know -- you know, I don't know how to draw that
distinction or how the courts are going to draw that distinction
any better than what I've already said, which I know is
inadequate.


 AARON:  do you think that maybe those issues on a
continuum are kind of what drew the court in Toyota to invoke
that language of central importance? This seems to be the
question that this e-mailer is asking, was the decision detailing
what type of -- what type of activity is a major life activity an
effort on that court to draw the line fairly straightly?


 BRIAN:  I think it was an effort and I think one criticism of it
was that it came out of thin air. That is, they started off by
saying major life activity and substantial limitation and looked
at the dictionary to determine what substantial and major mean.
You know, fine so far, but then all of a sudden they jump from
that to central to daily life without any explanation for where
they comes from or at least not one that I could tell. So I agree
that what they're trying to do is give a test which will assist in
excluding people whose only claim is an inability or restriction
in some very minor or very particularized activity; but I don't
know where it came from and I don't -- frankly, I don't think it's
all that helpful. 

I do think one place to look for further guidance perhaps is in
the studies that were cited in the Sutton case because in coming
up with that 43 million dollar figure -- 43 million person figure,
and in giving such emphasis to it, one of the things the court
did was quote various studies that Congress and the folks
drafting the ADA had been looking at to come up with that
number. And in those studies, I haven't looked at them in
detail, but they do talk about things like getting up in the
morning and going up and downstairs and things like that.

Some of which are not, you know, some of which a lot of
people don't do. Let's say climbing stairs.

A lot of people may not do and perhaps some of those would
not necessarily be considered to have a disability, but I think if
you look at what Congress was looking at, the kind of
functional analysis they were looking at is actually pretty broad
and I think there are a lot of activities of daily life, and, you
know, toothbrushing and bathing are some examples the court
itself gave which for a lot of people were kind of shockingly
minor in their importance, but that's what we're supposed to be
looking at.

The question is, you know, what I said before, does that mean
that nothing is a major life activity unless it's central to daily
life?

Or does that mean that we know some basic life activities like
walking, seeing, standing and the things that are collections of
activities are where we bring in this central to daily life thing or
does it mean that neither of those and something else as those
two courts in Minnesota said, two judges in Minnesota said.

So I don't know the answer. I do think that the key for the
courts is they want the disability to be fairly serious. You
know, and I think we can all agree with that general
proposition, but that doesn't help very much.

So we're slowly getting some guidance accumulated, but it's not
absolutely clear.


 AARON:  and a problem that I kind of see with that is, and
please check me if you disagree, is all throughout the text of the
ADA you're encouraged to do an individualized assessment and
yet we're called upon here to find something of central
importance to daily life that appears to not be individualized,
there seems to be some suggestion in the decisions that they
want something that strikes commonly across the populous that
resonates with everybody when in fact as you mentioned,
someone may be seriously impaired in their ability to do
something or a series of things that other people don't do.


 BRIAN:  right, I think that's right. I think that's one of the
criticisms is that it is clearly intended to be an individual
analysis and if there is one consistent message in all of the
Supreme Court ADA cases and there are several of them
now, that's the message that it's individualized, but here they
are trying to reach some broader language about, you know,
what is and what isn't going to be good enough, and it sort of --
it doesn't necessarily conflict with that, but it certainly isn't
fully consistent with that individualized view.

Another thing -- I mean, perhaps another thing to look at in
predicting what the lower courts are going to do in Toyota or in
other cases is the Supreme Court did look at some of the
limitations that this plaintiff had, and they were that she didn't
sweep, she quit dancing, she needed help dressing sometimes,
she couldn't play with her children as long as she had, she
couldn't garden, doesn't drive long distances and instead of
saying none of that is enough or the combination of that is not
enough, they didn't say that. They just said, that's not enough to
automatically show a disability, but we're going to send it
back and let you decide lower court. So they're not giving a
whole lot of help.

They are giving some spin, but -- well...


 AARON:  we have a couple of other questions if you have
time to address them.


 BRIAN:  okay.


 AARON:  the first is do you have a sense that Toyota attempts
to bring a more, quote, global impact perspective of a
disability, one that considers not only the impact of an
impairment on an individual's daily life, but also how the
impairment affects the individual's ability to participate within
their community?


 BRIAN:  I'm not sure that I see that. That may be right, but
that hasn't occurred to me.


 AARON:  another question is about -- gets at the heart of
Toyota or the facts behind Toyota. With impairments or
disabilities that are cyclical in how severe they are, arthritis,
carpal tunnel, you know, even MS might -- it might wax and
wane in terms of how severe it is. What is going to be the
burden there?


 BRIAN:  we haven't gotten a lot of guidance on that. In some
of the cites that I cited in the paper that those impairments can
be disabilities and it doesn't have to be continuous in its
manifestations, but I really think it's going to be an
individualized focus there. I think it's going to depend on when
it's in the active phase how severe is it in its impact, how
frequently does that cycling happen, you know, what are the
chances of it going away and lots of other things.

So I don't think there is any way to predict very clearly how the
courts are going to deal with that. Although, some courts have
been -- have said that such impairments are covered.

Let me move onto part 6 of the paper which is talking about
substantial limitations in working and I mentioned earlier that
working is probably a major life activity, but it's a life activity
of last resort and here is the reason:  the EEOC has said that in
assessing whether someone is substantially limited, a person
has to show that they are significantly restricted in their ability
to perform either a class of jobs or a broad range of jobs, and
here is the important part, and the inability to perform a single
job does not show a substantial limitation in working.

This is perhaps the biggest single failure in the Title I cases that
I've seen. And that is, the person was fired and fired under
circumstances suggesting that the employer either rightly or
wrongly didn't think they could do their job anymore, but that's
the only evidence that was submitted.

And they didn't attempt to show a limitation in other major life
activities, breathing, standing, lifting, bending, whatever those
might be, nor did they attempt to show a perception or a reality
that there was in fact a class of jobs or broad range of jobs that
they were limited in doing and not just the one.

So this is -- this is the point that I'm making at least at the
beginning of part 6 of the paper, and I think it's a really
important one. This is the way in which the ADA cases differ
from other employment discrimination cases. In all the other
areas, if a person fires you because of your race, then, you
know, that's the end of it, but here, the firing or the failure to
hire or whatever it might be, is not enough necessarily
because you have to show that you can't do a broad range of
jobs if you're relying on working as the major life activity.
And I think as a result of all of these cases that where plaintiffs
have lost, it sort of become the rule of thumb that you should
not rely on working as a major life activity because it's too hard
to prove and I sort of disagree with that. I do think it's the last
activity to consider, but I think with appropriate vocational
evidence, particularly from a vocational expert, that does look
at the class and range of jobs that are affected by a person's
impairment, that it can be a valuable way to show that a person
has a disability.

The EEOC guidance has some other factors to look at in
assessing this. There is a recent Texas case and Texas is one of
the states that has essentially the same definition of disability as
the ADA, at least on paper, and in this recent case, Wal-Mart v.
Conchola, they looked at the person the training, experience,
et cetera, and that was part of determining whether the person
was substantially limited in working. 

Let's see, there is another interesting case that just recently
came out called EEOC vs. UPA and in part, it's interesting
because of the severe allergy that we have to the season ar in
central Texas and for this particular person it was apparently
severe enough that he couldn't -- he had to go to work and so he
did go to work as a UPS driver, but he couldn't -- he basically
couldn't do anything else and when he wasn't at work, he was
in bed.

And his wife took care of everything, did the correspondence,
did all the housekeeping, and did all the other things that he
had normally done before, before he moved to central Texas.
And so one of the arguments there was that can't be a disability
because it only happens in this one part of the country, and the
court said, no, there is no limitation on that. He's in this part
country, he has this result, it might be a disability. 

Let me talk now about mitigating measures, part 7 of the paper.
In Sutton, we've mentioned that case a couple of times now, the
Supreme Court decided that the corrective or mitigating
measures that a person uses have to be considered in
determining whether there is a substantial limitation in a major
life activity. 

Sutton was a case involving airline pilots who had bad vision
and with glasses they had 20/20 vision and the Supreme Court
said we are going to look at the mitigating measures. They can
be devices like eyeglasses and in light of the eyeglasses, these
people -- these two sisters, the plaintiffs in the case, do not
have a disability.

There were two cases that came out with Sutton, one was called
Murphy, and they basically said the same thing, only the
mitigating measure was medication in that case, a person had
hypertension, but it was fully controlled apparently by
medication and so the court said no disability.

And the last case was called Kirkingburg, and there the person
had monday ocular vision and could only see out of one eye
and there was some evidence in the record that their body had
compensated for their lack of depth perception and the other
limitations in their vision, and the court said we're not saying
whether that person has a disability or not, but the internal
compensations that a body does are also possible mitigating
measures. 

And obviously the three Sutton cases greatly limit who is
protected by the ADA, but I think that they've been overstated
and I try to point out some of the limitations on Sutton in the
paper. And they all flow from or probably all flow from
Sutton's command that the focus has to be on what is currently
the situation for the person and not on what might be or what
was or what could be in the future, it's a present view that we're
looking at. And so I think the first thing that flows from that is
that we're deciding whether someone has disability at the time
of the discriminatory act or the failure to accommodate if that's
kind of case.

So a person might get worse or might get better, but their status
in the future or in the past is not the important thing, the
important thing is their status at the time of the discrimination
or alleged discrimination.

So not only does their status in the past not matter, but past
mitigation also doesn't matter.

And a good example of that is the finical case that's cited in the
paper. And in that case, the person had -- was hard of hearing
and in the past had used hearing aids, but no longer did for a
variety of reasons.

They were not very satisfactory to her.

They picked up background noise and other things, and so the
court said we're supposed to look at her as she was at the time
of the discrimination. At that time she did not wear hearing
aids and hadn't for a long time.

So we're not going to say she had mitigating measures because
that was long in the past. Likewise, the court refused to look at
possible future mitigating measures. There was a suggestion
that a certain kind of hearing aid might improve her hearing,
but the reality was she didn't use it.

I mean, that was a possibility, but either she wasn't aware of it
or for whatever reason wasn't using it and there are several
cases now that make that point about it doesn't matter what you
think might be available to this person, the question is what is
their indication at the relevant time.


 AARON:  so what you're saying is that a refusal to mitigate
doesn't mean you're not covered; is that correct?


 BRIAN:  well  


 AARON:  or a refusal to use a particular mitigating measure.


 BRIAN:  I would say that's true but there is at least one case
after Sutton, the Tangires case that's cited in the paper that takes
a contrary view, and there there was testimony that the
limitations were correctable through use of steroids. The
plaintiff was afraid to take steroids and didn't, and the court
said that, you know, she couldn't -- she couldn't get the benefit
of the act by her unsubstantiated belief in adverse effects.

Most courts do not take that attitude, and I think there is a good
reason for that. I mean, we don't want to get into letting an
employer, for example, decide what is the appropriate medical
treatment for their employees.

I mean, that should be the individual's own choice and the
question is, what was their situation? What was the substantial
limitation at the relevant time without looking at other things?
So for example, again in the EEOC versus UPS, the allergy
case, you know, obviously at the time the case went to trial, the
person had moved to Kentucky, no longer had the allergy and
was a lot better, but that wants the issue.

The issue was did they have a disability at the time? And it
didn't matter that there was this something that could be done,
that is moving, and there was also discussion in that case about
the use of medication to control symptoms and how commonly
effective that is. I think the point was for whatever reason it
wasn't effective for this particular plaintiff, and that's I think
also that point is made in another recent case called Keller
versus Board of Education of the City of Albuquerque, and
there the person had cancer and was on a medication that
substantially limited her sexual relations, which are generally
seen as a major life activity, and the employer said, well, there
are lots of over the counter remedies that are prescribed, for
example, to women in menopause for this similar condition,
and the court said, that's totally beside the point.

We don't know how effective they would have been and she
wasn't taking them. The question is did she have a disability at
the relevant time and she did because of this side effect or she
might have. I don't think they fully decided. I think what they
said is it gets to go to the jury to decide.

So another point to make in the sort of -- in the parameters of
Sutton and the mitigating measure thing is to point out that if
the employer or the defendant prevents the use of a mitigating
measure then that might be discrimination. That person might
be covered and that is cited in the paper in part 7, and along
those lines, perhaps, not everything used to compensate for an
impairment is a mitigating measure. And that point is made in
finical in at least a couple of ways.

First, the person was seeking a particular reasonable
accommodation from the employer, and the employer in
defending the case said, well, she admitted that she could have
done better with this certain kind of telephone.

And the court said, no, you're missing the point. The reasonable
accommodation is not a mitigating measure, and it explains in I
think pretty clear terms why it doesn't make sense for it to be
otherwise. But the other thing they were saying is that this
person could lip read to some extent and used telephone lights
to alert her to phone calls, and therefore those were mitigating
measures, too, and the court said, no, those do help her
function, but they do nothing for her hearing.

Some of the things she did actually did affect her hearing and
were mitigating measures and the court did consider those
where she would sit close to a speaker in a presentation and a
lot of things she did to improve her functioning did not affect
her hearing one way or the other and are not mitigate measures
and that point was also made in the Bartlett case. A person who
had a reading disability, sometimes she was able to function by
having others read to her or by being in study groups, and she
was able to be successful that way, but none of that helped her
read.

That just helped her function in society or in law school. And
the point is also made in Sutton itself where they give an
example about a person in a wheelchair whose wheelchair
improves mobility but doesn't improve the ability to walk. And
the last point, the last limiting thing I want to say about these
mitigating measures is we have to look at the side effects as
well.

And Sutton says that in several cases I cited say that the most
common example is side effects of medication like the board of
education in Albuquerque case that I mentioned, but it can be
other side effects.

There is the Belk case that was cited in the paper, a person
wore a brace and the brace itself caused certain problems.
The EEOC guidance that I cite at the end of this section talks
about the effects that is there prosthesis might have and there
are other examples. 

So we are required to consider mitigating measures but we
have to be clear on what the mitigating measures are and that's
my point in part 7.

Any questions at this point?


 AARON:  no, not on this area.


 BRIAN:  okay, the next part of the paper is regarding proof of
disability and here I'm just suggesting some other things to look
at beyond what we've already talked about. And the first one is
obvious, and that is to use medical or other expert evidence in
trying to figure out whether a person has a disability, and not
just individual treating physicians for example or other expert
witnesses, but call on organizations with expertise in a
particular area, for example, the American Diabetes
Association has a whole lot of resources available in attempting
to answer whether a person with diabetes or insulin-dependent
diabetes is a person with diabetes.

Likewise the Bazelon Center for Health Law has a lot of
material related to mental illness and other psychiatric
impairments. So my point here is that call on the resources that
are available and make full use of them because you're going to
have to convince the employer, the court, whoever, that this
person has a substantial limitation and that means a fair
understanding of the condition.

The second point is with regard to comparative evidence and I
guess the point here is when you're trying to suggest that
someone has a substantial limitation as compared to the
average person in the population, which is the EEOC's test, and
the ones that the court seems to follow, it might be useful to put
on evidence of what that average ability in the general
population is.

There was a lot of discussion of that in the Bartlett case that I
cited in the paper. There is reference to that in the EEOC v.
Sears case in this section of the paper, and there are a couple of
cites in which the court didn't have any need for that evidence.
Let me mention one other case here, and that is a case called
Mainard vs. Knewmatic products.

The opinion that deals with this issue has since been vacated on
other grounds and so it's no longer good, but shocking thing in
that case was that the evidence was that the plaintiff could not
walk more than 50 or 100 feet and the court there suggested
that that's not enough to show a substantial limitation in
walking, unless you also show what the average person can
walk, how far they can walk, and so the court was not willing,
for example, to take judicial notice of the fact that most people
can walk more than 50 feet. 

And that's obviously a very restrictive reading, and like I said,
that opinion is no longer good, but the thinking of those judges
-- you know, those judges still hold that opinion no doubt.
So that's just something to consider.


The next part -- part 8c deals with social security evidence, and
most of the cases out there talk about ways in which social
security evidence can get you in trouble in an ADA case.
And that's suggested in the Giles case I cited.

There is one case, the Lawson case, that those how that
information can be beneficial. And the point there is while the
definition of disability is different in the ADA and 504 on the
one hand and social security on the other, still, a finding of
disability for social security might suggest that a person has an
ADA disability as well.

You know, I can't -- I know a lot of people want to know, you
know, why do I have a disability for purposes of social security
or SSI, but they're saying I don't have one under the ADA?

And the answer is that the definitions are just different, and for
example, the Social Security Commission does not consider
reasonable accommodations, and they also -- because they have
such a large applicant pool, have come up with guidelines that
are much -- that are grids, where if you have these certain kinds
of limitations or something equivalent to them, you are
covered. The ADA has not done that.

There is no list of covered disabilities anywhere, but anyway,
social security can be useful evidence and so consider that.

The last point is one we've already made, and that is that the
analysis about who has a disability has to be individualized.
And like we said, that is the clearest message of the Supreme
Court cases so far, and there is some further -- there is some
things that flow from that message that are cited in part 8d of
the paper. 

I'm going to keep going, Aaron, unless you stop me. I'm
moving on to part 9, which is record of a disability, and the
main point I want to make here is obviously you don't have to
have an actual, current disability to be covered.

If you have a record of a disability, but a record of a disability
means a record of an impairment that was substantially limiting
to a major life activity and so it isn't enough that you, you
know, have a letter saying so and so had back surgery in 1996
because we don't know if that was substantially limiting.

You know, and if the letter went on to say, you know, he was in
traction for six months and couldn't work for an additional
year, now we're getting the idea that the person was limited and
if an employer sees that letter and takes action in response to it
and won't hire the person, then they've discriminated because
that person is protected, but just the impairment itself or the
record of an impairment is not enough. We need that
substantial limitation part.

I cite several cases on record of disability in the paper. Moving
on to part 10, regarded as having a disability, this is the last of
the three prongs, and you have an actual disability, a record of a
disability and you can be regarded as having a disability.

I'm going to try to remember to slow down because we do have
a court reporter transcribing.

And there are three ways suggested in part 10 in which a person
may be regarded as having a disability, and I won't go over that
any further, but again, the same point I made with regard to
record of a disability is important here, and that is, it's not
enough that you are regarded as having an impairment, you
have to have an impairment that substantially limits a major
life activity.

So it's not enough that you're regarded as being unable to do
one job, for example, you have to be regarded as not being able
to do a class of jobs, a range of jobs, that kind of thing.

Several examples are given in this part of the paper as well.
Let me mention one thing that's probably not very obvious to
nonlawyers in the audience, and I reference in this section the
fact that, quote, pretext evidence, closed quote, can be useful in
showing that someone was regarded as having a disability, and
pretext evidence is a special area of employment law which I'm
not going to go into, but for example, it might be evidence that
a person was fired and the reason given was they did a very
lousy job, but they were able to show that the written
evaluations that they got two weeks before were stellar, so it
looks like the employer is lying about them.

And so pretext is often that kind of -- if not a lie, at least
something that suggests that the reason given was not true, and
once you have established the reason given was not true, the
courts realize that employers usually take action for some
reason and if the reason they came forward with is not true,
they're probably hiding an illegal reason.

And so there is a lot of case law on this which I'm not going to
go into, but for you lawyers out there, think about the pretext
cases as helping in these regarded as disability cases.

Okay, I'm done now with sections -- with the first ten sections,
moving on to section 11, my point here is that there are actually
some people who do not have a disability of any of those three
kinds who are covered by the law in certain areas, and I
mention in 11a, retaliation, and actually there are two parts to
that section that I cite, and it should really say retaliation and
coercion, and neither of them require the person have a
disability.

So for example, if you retaliated against because you assisted
someone who had a disability at work, then you're protected
even though you didn't, or if you were retaliated against
because you thought you had a disability and you filed a claim
because of it or asked for an accommodation and you were
retaliated against, the fact that they ultimately determined you
did not have a disability doesn't matter. If you had a good faith
belief that you had one, then you're covered. So retaliation and
coercion are one area in which a person without a disability
might be covered by the ADA.

Another is the association claim mentioned in Part B, and the
law -- the Title I at least expressly says that -- and actually Title
II and Title III in the regulations also say that a person that it is
illegal to discriminate against someone because they associate
with or have a relationship with a person with a disability even
if they don't.

And the last section, c., is inquiries and exams.

This is a whole special area of ADA law, but as probably most
of you know there are certain limits on what employers can ask
of people applying for jobs and then once you have a job of
your medical condition after that, there are certain restrictions
on that, and most of the cases have said that you do not need to
be a person with a disability to sue to enforce those portions of
the law.

The last portion which I should have mentioned in this as d.,
but which I didn't, is the confidentiality provisions and at least
the EEOC compliance manual suggests that you do not have
to have a disability in order to be able to be protected by those
provisions requiring confidentiality of medical records under
the ADA.

Okay, that ends my direct discussion of the definition of
disability under the ADA and 504. I'm going to, if we have
time, I'm going to take a couple of minutes to talk about state
laws and other cases pending in the Supreme Court. Unless
there are other questions.


 AARON:  no, we're good. We've got some follow-up
questions when you're done with that.


 BRIAN:  okay, let me just first say that I included some
examples of state laws here, and let me admit that I did not
actually go to the library and look in the state statutes. I used
the internet and so I don't promise that all of these definitions
from states outside of texas are fully accurate. I believe they
are, but I don't want anybody to rely on this section. My point
here is that some states actually have different language in their
statutes about who is covered, and some states have the exact
same language, but it is interpreted differently. And the clearest
example probably of the different language is the California
example that I talk about, a. b. 2222 and that case, that was a
recent revision to the California statute and it was explicitly
done because of the restrictive reading of the ADA given by the
courts. 

And so they expressly said you do not need to look at
mitigating measures, it doesn't have to be substantially limiting,
it's sufficient if it's simply limiting of a major life activity, and
there are certain listed disabilities as well. So that's an example
of a state writing their law in a very different way to be more
protective.

An example of a state that has very similar or identical
language, but interprets it differently is the Day Hill case out of
Massachusetts, and this case last year the Supreme Court of
Massachusetts said that they were not going to be looking at
mitigating measures, and they basically just said we don't have
to follow the federal court interpretation of the ADA and we're
not going to. We don't think it's right.

That's all I'm going to say about state laws. Let me just run
through real quickly the pending cases the Supreme Court has.
The one that should come out any day is U.S. Airways vs.
Barnett and that really is not expected to say anything about the
definition of disability. It's really talking about the limits of the
reasonable accommodation requirement.

The next one is Chevron vs. (Inaudible) and that won't come
out for a little while because it was just argued less than a
month ago. That was talking instead about the direct threat
defense that employers have. 

The next one on my list is Barns vs. Gorman, also will not talk
about the definition of disability and instead is going to talk
about whether punitive damages are available against the city
or a local governmental entity under the ADA or 504.

The next one is Memorial Hospital vs. Humphrey. Again, as
near as I can tell, nothing in that case would help us understand
the definition of disability at all.

It's really about accommodations, and the Supreme Court has
not decided, as far as I know, whether to grant certain -- that is
whether to accept that case for review, and they invited the
U.S. Solicitor General to say what he thought, and he recently
filed a brief in the last couple of days saying that he did not
think they should review that case, and the plaintiff, the person
with the disability won below. So that's good news for
advocates for disability. We'll just have to see if the court --
what the court does there.

There is a case -- there are several cases in which the court has
refused to review the case, that they were pending until real
recently, and the court has rejected review in sefl of those case
and those did deal with the definition of disability. One of them
was Watkins vs. Roadway Express. So I don't know what it
actually said, but the court is not going to review that.

Another one is Chinowith vs. Hillsboro County and the court
refused to review that case and in that case the court held that
driving is not a major life activity, which is not absolutely
clearly settled in other courts, but that's what the 11th circuit
said. The Supreme Court is not going to review that.

The case I mentioned earlier, UPS vs. EEOC about the allergy,
the fellow with the allergies, the Supreme Court is not going to
review that. They refused to restrew that.

And another case called Stumbo, they refused to review here
just in the last couple of days, and in that case, it was a retired
police officer with hypertension, but it was fully controlled by
medication so he didn't have any actual disability and the
employer refused to hire him to be an international police
monitor in Bosnia, and the court -- but the employer also said
we think this guy would be a great police officer, security guard
anywhere except in a war zone like Bosnia, and so the court
said, well, they obviously didn't think he was substantially
limited in working because they thought he could do all the
other jobs in the class of jobs, he just couldn't do the war zone
job.

So that's that. Let's see --


 AARON:  we're going to have to move it along. I think we're
against the wall in terms of time.


 BRIAN:  that's good timing because I'm done.


 AARON:  I want to encourage everybody that we will answer
questions that we weren't able to get through. I will direct these
questions to Mr. East or the appropriate people and respond via
e-mail. So continue to send those questions in. 

I want to thank Mr. East for presenting today, and to remind
everybody that the sponsorship for this Webcast and many
others is provided by NIDRR, collaborators include the RIIL
Project, and the staff of the RTC at Kansas University.

And the staff at the Southwest Disability and Business and
Technical Assistance Center, a project of ILRU.

I'd like to further note that this Webcast would not be possible
without the efforts of our ILRU in-house staff, Marj Gordon,
Sharon Finney, Dawn Heinsohn, Rachel Kosoy, Mark
Richards, the technical expertise of Rob Dickehuth or the
services of our realtime captioner, Marie Bryant.

Thanks, Marie, for your patience with my speedy talk.

I want to thank again Mr. East and for everybody who
participated by watching, listening and sending your questions
in.