In two important decisions affecting persons with disabilities seeking reasonable accommodations, the Supreme Court held in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) that the determination of whether a person has a disability must take into consideration whether the person is substantially limited in a major life activity when using a mitigating measure.

A disability under the law is defined as a physical or mental impairment that substantially limits a major life activity. Major life activities can include, but are not limited to: caring for oneself, sleeping, eating, walking, standing, lifting, thinking, concentrating, and other cognitive functions. Prior to the Supreme Court’s decisions in 1999, the determination of whether a person had a disability was made by considering only whether the person’s physical or mental impairment substantially limited a major life activity, without regard to mitigating measures. Mitigating measures can be any measure intended to correct for or mitigate a physical or mental impairment, such as medication, a prosthesis or a hearing aid.

What the Supreme Court’s decisions mean is that if a person with a physical or mental impairment has little or no difficulty performing a major life activity when using a mitigating measure, that person is unlikely to meet the definition of person with a disability under the law. However, the Supreme Court did make clear that the determination of whether a person is disabled under the law must be based on a person’s actual condition at the time of the alleged discrimination. So, if no mitigating measure was used to correct or mitigate the person’s physical or mental impairment at the time of the alleged discrimination, then the effects of the mitigating measure do not necessarily have to be considered.

Relevant considerations in determining whether a person meets the definition of a person with a disability if a mitigating measure is being used are: 1) whether the person uses a mitigating measure to control or eliminate the symptoms of the physical or mental impairment; 2) to what extent the mitigating measure controls the symptoms of the physical or mental impairment; and 3) whether the mitigating measure itself causes any limitation in performing a major life activity.

Remember, just because you use a mitigating measure to help with the disability, you are not automatically unable to meet the definition of a person with a disability. If you are a person with a disability and you use a mitigating measure to help with the disability, when requesting a reasonable accommodation be prepared to describe the extent to which the mitigating measure helps or does not help you perform a major life activity. If you still have great difficulty performing a major life activity even with the mitigating measure, then you could still be entitled to a reasonable accommodation.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **