MAJOR LIFE ACTIVITY OF BREATHING
The Equal Employment Opportunity Commission (EEOC) regulations for Title I of the Americans with Disabilities Act (ADA) are 29 C.F.R. Part 1630 and 29 C.F.R. Major life activities are defined under § 1630.2 .
29 C.F.R. § 1630.2. Definitions.
(i) Major life activities means functions such as caring for oneself, performing manual activities, walking, seeing, hearing, speaking, breathing, learning and working.
In its interpretation of major life activities, the EEOC states:
If an individual is not substantially limited with respect
to any other major life activity, the individual’s ability to perform the major
life activity of working should be considered. If an individual is
substantially limited in any other major life activity, no determination should
be made as to whether the individual is substantially limited in working. See
29 C.F.R. Part 1630, App. § 1630.2(j), page 368 (
The Supreme
Court has recognized that the EEOC has interpreted its regulations to mean that
the major life activity of working is to be considered “only if an
individual is not substantially limited with respect to any other major
life activity.” See Sutton v. United Air Lines, Inc., 527
The U.S. Court of Appeals for the Fifth Circuit has consistently held that:
Only if there is no evidence of impairment to the other
major life functions is an impairment to working considered. See Talk v.
Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999);
However, in Rhoads v. F.D.I.C., the U.S. Court of Appeals for the Fourth Circuit held that:
We accordingly hold that, where an
Also, in Rhoads v. F.D.I.C., the court held that:
Although Rhoads was sometimes exposed to cigarette smoke outside the workplace — such as shopping malls and restaurants — she would quickly leave those establishments once she noticed the preliminary signs of exposure, e.g., a stuffy nose, sore throat, and tight chest. Id, at 387-88.
Furthermore, in Judd v. DaimlerChrysler, Complaint Number I00106858 (2003), the Office of Federal Contract Compliance Programs (OFCCP) held that:
The fact that the substantial limitation concerning the ability to breathe is triggered by a workplace environment demonstrates that Ms. Judd is not substantially limited in the major life activity of “breathing.” The proper inquiry in these circumstances is whether Ms. Judd is substantially limited in the ability to work. Since Ms. Judd states that her condition is aggravated solely by her workplace environment, her allegations will be assessed as a claim that she is substantially limited in “working.”
Both Rhoads and Judd had their complaints that allege substantial limitations of the major life activity of breathing analyzed under the major life activity of working in violation of the EEOC interpretation of its regulations, 29 C.F.R. Part 1630, App. § 1630.2(j), page 368 (7-1-06 Edition). and the Supreme Court decision in Sutton v. United Airlines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (1999).
Rhoads and Judd were both determined not to be persons with disabilities based on the fact that they chose to leave or not enter establishments that were known to them to be inaccessible because of second hand tobacco smoke.
However, the Supreme Court has held that:
In the end, the disability definition does not turn on
personal choice. See Bragdon v. Abbott, 524
Also, the
Rehabilitation Act has been held to require “reasonable accommodations that
permit handicapped individuals to lead normal lives, not merely accommodations
that facilitate the performance of specific employment tasks.” See McWright
v. Alexander, 982 F.2d 222, 227 (7th Cir. 1992); Buckingham v.
Furthermore,
42 U.S.C. § 12201(a) requires that the
And, “The
ADA places substantial emphasis on equality of access.” See
Therefore,
the Fourth Circuit and the OFCCP were both in violation of the
Moreover,
Title III of the
Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this title does not intend to comply with its provisions. See 42 U.S.C. § 12188(a)(1).
Citing 42 U.S.C. § 12188(a)(1), the U.S. Court of Appeals for the Ninth Circuit held that:
Thus, under the ADA, once a plaintiff has actually become aware of discriminatory conditions existing at a public accommodation, and is thereby deterred from visiting that accommodation, the plaintiff has suffered an injury. So long as the discriminatory conditions continue, and so long as a plaintiff is aware of them and the plaintiff is deterred, the injury under the ADA continues. (citations omitted). See Pickern v. Holiday Quality Foods Inc. 293 F.3d 1133, 1136-37 (9th Cir. 2002); Dudley v. Hannaford Bros. Cos., 333 F.3d 299, 305 (1st Cir. 2003).
Also, the U.S. Court of Appeals for the Eighth Circuit has held that a disabled individual may invoke Title III to demand that a building be brought into compliance with the ADA even though he only entered the building once. See Steger v. Franco, 228 F.3d 889, 893 (8th Cir. 2000).
The federal statute, 42 U.S.C. § 12188(a)(1), and case law under Title III make it obvious that the ADA does not disqualify persons from having disabilities because they do not enter establishments where they know that they will suffer asthma attacks as a result of second hand tobacco smoke.
Therefore, the Fourth Circuit and the OFCCP were in violation of 42 U.S.C. § 12188(a)(1) when they based their decisions on Rhoads’ and Judd’s personal choice to leave an establishment or to not enter an establishment in order to avoid an asthma attack.
The OFCCP based its decision in Judd v. DaimlerChrysler on the Supreme Court decision in Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).
In Toyota Motor Manufacturing, Kentucky v. Williams, the Supreme Court granted certiorari to determine the proper standard for assessing whether an individual is substantially limited in performing manual tasks. Id., at 192.
Also, in deciding Toyota Motor Manufacturing, Kentucky v. Williams, the Supreme Court used Webster’s Third New International Dictionary. This dictionary defines “manual” as: “of, relating to, or involving the hands.”
There is no indication in Toyota Motor Manufacturing, Kentucky v. Williams that the Supreme Court meant for the performance of manual activities to be applicable to any other major life activity than that of performing manual tasks. Furthermore, in Toyota Motor Manufacturing, Kentucky v. Williams, the Supreme Court held that:
When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. Id., at 200-201.
There is also no support in the Act, our previous opinions, or the regulations for the Court of Appeals’ idea that the question of whether an impairment constitutes a disability is to be answered only by analyzing the effect of the impairment in the workplace. Indeed, the fact that the Act’s definition of “disability applies not only to Title I of the Act, 42 U.S.C. §§ 12111-12117 (1994 Ed.), which deals with employment, but also to the other portions of the Act, which deal with subjects such as public transportation, 42 U.S.C. §§ 12141-12150, 42 U.S.C. §§ 12161-12165 (1994 ed. and Supp. V), and privately provided public accommodations, §§ 12181-12189, demonstrates that the definition is intended to cover individuals with disabling impairments regardless of whether the individuals have any connection to a workplace. (emphasis added). Id., at 201.
It appears that the text cited above in Toyota Motor Manufacturing, Kentucky v. Williams is the basis for the OFCCP decision in Judd v. DaimlerChrysler. There is no indication in the above cited text that the Supreme Court intended that a disability be analyzed off the job in any manner other than the applicable EEOC regulations, the federal statutes and Bragdon v. Abbott.
In order to
be a person with a disability, a person must be substantially limited in a
major life activity and the EEOC regulations for Title I of the
(j) substantially limits—(1) The term substantially limits means (i) Unable to perform a major life activity that the average person in the general population can perform; or:
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
Obviously, the general population is not restricted from entering an establishment or required to leave an establishment where second hand tobacco smoke is present in order to prevent asthma attacks and other adverse reactions to the second hand tobacco smoke.
However, in analyzing the major life activity of breathing some courts have held that evidence that a person can participate in recreational activities undermines a finding that a person is handicapped or disabled. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 723 (2nd Cir. 1994); Byrne v. Board of Education, School of West Allis, 979 F.2d 560, 565 (7th Cir. 1992); Jeffrey v. Ashcroft, 285 F.Sup.2d 583, 589 (M.D.Pa. 2003); Guess v. Pfizer, Inc., 971 F.Supp. 164, 169-70 (M.D.Pa. 2003); Emery v. Caravan of Dreams, Inc. 879 F.Supp. 640, 643 (N.D.Tex. 1995).
The statutes and regulations cited above can be accessed at http://www.law.cornell.edu.
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