Epilepsy and the ADA: The Fallout of Sutton Begins

By Laura F. Rothstein
Health Law & Policy Institute

According to a recent district court decision in Houston, Todd v. Academy Corp., No. H-98-1620, 1999 U.S. Dist. LEXIS 12133 (S.D. Tex. Aug. 5, 1999), an individual who suffers from epilepsy is not protected from employment discrimination under the Americans with Disabilities Act (ADA). This is exactly the type of result that many commentators feared was the logical aftermath of the Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson's Inc. v. Kirkingburg, Supreme Court decisions in which the Court held that when an individual can mitigate the disability through medication or other methods, that individual is no longer substantially limited in a major life activity. Unfortunately, the cases decided by the Supreme Court involved impairments that are probably less likely to be the basis of substantial discrimination in many settings (near-sightedness, hypertension, and monocular vision) with or without mitigating measures. The extension of the Court's reasoning, however, leaves individuals with impairments such as epilepsy, diabetes, cancer, and mental illness with substantial problems in challenging adverse job action based on their conditions.

The Court's reasoning could be interpreted, as it was in the Todd case, to establish that an individual who is on medication to address the epilepsy is not covered by the definition of disability because the medication results in his no longer being substantially limited in a major life activity of working. Thus, an employer could "legally" discriminate against such an individual based on the fact of the epilepsy, unless the medication did not adequately control the condition. An individual whose medication does not control the condition, however, faces the very real possibility that he or she is no longer "otherwise qualified" in many situations.

Examples of this catch 22 are obvious. An individual with a mental illness requiring mood controlling drugs might be considered not to be disabled. If that same individual stops taking the medication, he or she would become substantially limited but might well display behavior unacceptable in the workplace.

Surely Congress did not intend to remove individuals with these types of conditions from protection, simply because mitigating measures lessen the severity of the limitation. Unfortunately, the Supreme Court's ruling is likely to lead to other similar lower court decisions until either Congress can amend the statute to reflect what many believe was its original intent or until a case involving a condition such as epilepsy or diabetes reaches the Supreme Court for further clarification.

The Court left open the possibility that not all conditions that could be mitigated would no longer be disabilities, Unfortunately, the Court did not focus on the difference between conditions that are stigmatizing (such as epilepsy, mental illness, diabetes, and cancer) where an employer might not want to hire these individuals, not because of the inability to do the job, but because of myths and stereotypes about their abilities and because of concerns about increased health insurance costs.

The only avenue remaining until Supreme Court and/or Congressional attention to this issue, is the application of the "regarded as" prong of the ADA. It is arguable that individuals with these types of conditions suffer from substantial prejudice and are regarded as undesirable employees because of their impairments by a wide range of employers. These individuals might be protected as being "regarded as" substantially impaired. The remaining questions will be whether they will be able to prove that they were regarded as having a substantial impairment and, if so, whether they will be entitled to reasonable accommodation. Traditionally, such accommodations were only available to those who were "actually impaired," for example, someone with diabetes who is insulin dependent. The insulin may control the condition, so that the mitigating measure would mean the individual is not "substantially limited" but is still regarded as limited. That individual may require an exception to a prohibition on eating at a workstation because the food is needed to keep the condition under control. If courts were to hold that a "regarded as" condition is not entitled to reasonable accommodation, the individual may not be allowed to have food at the work station and then might not be otherwise qualified to perform job requirements safely and effectively.

It is doubtful that the Supreme Court thought through these kinds of situations when it issued its controversial ruling in Sutton. Hopefully some lower court decisions will bring this issue to light and clarify coverage in the near future. Without prompt clarification, millions of Americans who had long thought they were protected from discrimination since the ADA was passed in 1990, will be left in limbo as to their legal rights.