Murphy v. United Parcel Service, Inc. – Oral Argument – April 27, 1999

Media for Murphy v. United Parcel Service, Inc.

Audio Transcription for Opinion Announcement – June 22, 1999 in Murphy v. United Parcel Service, Inc.

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William H. Rehnquist:

We’ll hear argument next in Number 97-1992, Vaughn Murphy v. United Parcel Service.

Mr. McAllister.

Stephen R. McAllister:

Mr. Chief Justice, and may it please the Court:

Vaughn Murphy’s extraordinary hypertension is permanent and incurable.

It places a constant stress on his cardiovascular system and on major organs such as his heart, his kidneys, and his eyes.

There’s no dispute in this case that without medication Vaughn Murphy’s hypertension limits virtually all of his life activities, and substantially so.

The fundamental question in this case is whether the Americans With Disabilities Act applies to Vaughn Murphy at all.

With all due respect to the lower courts, the ADA applies to Vaughn Murphy for two reasons.

First, he has an actual disability, because his hypertension substantially limits his major life activities.

Second, UPS regarded him as disabled when it fired him.

Satisfying either of those two statutory alternatives establishes only that the ADA applies to Vaughn Murphy and that his suit against UPS should proceed to the additional inquiries that the statute contemplates.

William H. Rehnquist:

You say that your first point is that he’s covered by the ADA because his hypertension limited major life activity.

Are you talking about his hypertension as medically corrected, or in its original state?

Stephen R. McAllister:

In its unmedicated states, Chief Justice.

Sandra Day O’Connor:

Well, if we were to decide that the statute contemplates looking at it in the medicated state, is he still limited in his major life activities even medicated, because as I understand it, it doesn’t fully correct his condition.

Stephen R. McAllister:

That’s correct, Justice O’Connor.

The lower courts both concluded that with medication he had no limitations whatsoever.

We respectfully disagree with that, but for purposes of your decision, we–

Sandra Day O’Connor:

You would suggest that we make the assumption–

Stephen R. McAllister:

–Yes.

Sandra Day O’Connor:

–then that in his fully medicated state he can function.

Stephen R. McAllister:

They make that assumption, yes.

Antonin Scalia:

Mr. McAllister–

Sandra Day O’Connor:

–But you say that even if that’s… even if we look at it from the standpoint of his medicated state, if he’s regarded by the employer as being disabled, that’s enough, of course, under the statute.

Stephen R. McAllister:

Yes, it is.

Antonin Scalia:

Mr. McAllister, your client can be rendered better, and you say we should assume not disabled, by regularly taking medicine.

What about those whose disability is eliminated by some more permanent physical method, for example, getting a replacement hip?

You know, without that replacement hip, I would be totally unable to function, but I have the replacement hip, or I have a heart bypass.

Now, should we… what should we regard the criterion as to whether the person is disabled or not?

Stephen R. McAllister:

Justice Scalia, two points in response to that.

Stephen R. McAllister:

There may be certain corrections that, because they are permanent and, in essence, perfect, basically eliminate the underlying impairment, so then the person would not be under the first prong.

Antonin Scalia:

Why should that make a difference, then?

I don’t see why it should make a difference if you can be… let’s assume you can be rendered perfect by just taking a pill every day.

Your assertion is that in the one hand taking a pill every day does not cause you to be no longer disabled, but getting a replacement heart valve or something like that does.

Stephen R. McAllister:

With all due respect, Justice Scalia, we believe there is a difference between those two things.

One, the corrective measurement is permanent, and although Vaughn Murphy has to take his medicine every day he has to have variations at times in how much he takes, which medication–

Antonin Scalia:

So what?

The fact is, every day… my hypothetical is, you render it perfectly normal.

I mean, we’re leaving aside the question of whether he’s still disabled after taking the pill.

I assume he’s perfectly normal just by taking the pill every day.

I can’t see why it makes any sense to call one person continuing… to be continuingly disabled and the other person not, just because the one remedy is by some physical means and the other one is by taking a pill every day.

In terms of the purposes of the act, why should it make any difference?

Stephen R. McAllister:

–Justice Scalia, it would… the question seems to be premised on the notion that there is a perfect correction in a case like Vaughn Murphy.

In many of these cases there’s not a perfect correction.

Antonin Scalia:

That’s the theory we’re arguing the case.

In response to Justice O’Connor’s question, we’re setting aside the question of whether he’s not, you know, continuingly disabled.

I mean–

Sandra Day O’Connor:

–It’s an easier case to think about, perhaps, in thinking about one that will be argued later this week, 20/20 vision if you wear glasses, but without them, terrible, terrible handicap.

Why shouldn’t we look at it as though the person were wearing glasses to determine whether there’s a disability?

Stephen R. McAllister:

Justice O’Connor, fundamentally, to serve what we believe are the purposes of the statute, the critical question here, first of all, is whether this person is disabled.

If they are not disabled, because we look at the mitigating measures, we never get onto any of the rest of the statutory inquiry.

Sandra Day O’Connor:

Well, but I think the regarded as feature protects the person who alleges the disability, notwithstanding the corrective measures.

Is the employer regarding the person as disabled nonetheless?

I mean, that really hits at the heart of what the statute was aimed at.

Stephen R. McAllister:

I agree with that, Justice O’Connor.

The regarded as prong is very important, and it’s particularly important in this case.

It is not… was not in our view properly interpreted by the lower courts, so that you could take the view that if you look at mitigating measures, Vaughn Murphy can do lots of things, but the fact remains that UPS fired him solely because of his high blood pressure.

They regarded him as disabled, and yet he got nowhere in the lower courts because the lower courts said… they relied on a DOT regulation.

Somehow that’s separate from his high blood pressure, and they didn’t really think that he couldn’t do all these sorts of life activities.

Antonin Scalia:

Before we get to the regarded as, though, let’s talk a little more about, you know, whether he’s disabled or not, never mind the regarded as.

Antonin Scalia:

What do you do with the very first words of the statute, which says, the Congress finds that some 43 million Americans have one or more physical or mental disabilities?

Now, if, you know, corrective measures are not counted, I am disabled in a major life function.

I mean, I could not do my current job, I could not do quite a few other jobs without glasses, and if corrective measures are eliminated, many more than 43 million Americans… I mean, I guess it’s sort of nice to think that this is… you know, that a majority of Americans can claim the benefits of the disabilities act.

That’s very comforting.

But Congress did say that… I think they used in this prologue, too, the famous words, discrete and insular minority.

Isn’t that used in the prologue?

Stephen R. McAllister:

Yes, it is used in the findings.

Antonin Scalia:

Well, how can you possibly say it’s a discrete and insular minority if people who, you know, wear glasses and have all sorts of corrective measures for what would otherwise be disabilities?

It just doesn’t square with what Congress seems to be talking about here.

Stephen R. McAllister:

Justice Scalia, what Congress was talking about was a large group, I think, rather than whether or not it’s a discrete and insular majority.

Antonin Scalia:

They said some 43 million Americans.

I mean, that’s a–

Stephen R. McAllister:

IS a large group.

Antonin Scalia:

–I mean, a lot of Americans wear glasses and couldn’t function without them.

Many more–

Stephen R. McAllister:

More than 43 million.

That certainly is not some sort of a scientific finding.

In our view it suggested that they expected the statute would apply relatively broadly.

There may be some other ways–

Antonin Scalia:

–No, I thought… discrete and insular minority, they said.

David H. Souter:

But Mr. McAllister, the concept of disability requires some reference to the average.

Stephen R. McAllister:

–Yes, it does.

David H. Souter:

And I presume that by means of that referenced you would exclude from the class of the disabled myopic people like Justice Scalia.

I refer to his glasses.

[Laughter]

And if you–

Antonin Scalia:

–Ask Justice Souter how long his arms are.

[Laughter]

David H. Souter:

I’ll do even better than that.

If you exclude such people as Justice Scalia and me, by reference to that… to the criterion of average, is there any reason to think that the 43 million doesn’t work out even on your theory?

Stephen R. McAllister:

On our theory, it may still work out, 43 million.

That is another explanation.

William H. Rehnquist:

Well now, explain that, because I… it’s not immediately apparent to me.

Stephen R. McAllister:

The notion would be certainly widely shared, relatively common impairments.

The EEOC has taken the position that the substantially limits language means, compared to an average person, so if there are lots of Americans who share this impairment on an average sense, the average eyesight is not 20/20, it’s something worse than 20/20, so in an average sense, someone who… I don’t know what numbers it would be, but say 20/40 might not be substantially limited under the statute.

Antonin Scalia:

Where do you get that out of the statute?

What words in the statute–

Stephen R. McAllister:

We don’t get that out of the statute–

Antonin Scalia:

–I mean, a disability is a disability, and without correction, I’m, you know, close to blind.

Stephen R. McAllister:

–But the 43 million–

Antonin Scalia:

That doesn’t count because a lot of other people are the same way?

John Paul Stevens:

No, but everybody who wears glasses is not close to blind.

There are a lot of people who will wear glasses to get to 20/20, but maybe 20/30, 20/40, and without glasses they’re not substantially impaired in their life activities, even though they’re better off with glasses.

Stephen R. McAllister:

–That’s correct, Justice Stevens.

Antonin Scalia:

Yes, but a lot more than 43 million.

William H. Rehnquist:

A lot more than 43–

John Paul Stevens:

–I’m not sure.

Stephen G. Breyer:

I don’t see how that works.

I mean, is… imagine a person who has Justice Scalia’s vision without the glasses, but that person for some reason can’t wear glasses.

I mean, do we really want to say that that person is not disabled?

Imagine a person who can’t wear false teeth for some reason, and has none.

Is that person not disabled?

I would think so, but do you want to say everyone with false teeth is disabled?

Stephen R. McAllister:

The–

Stephen G. Breyer:

I mean, I don’t see how to get the statute to work, and therefore I want to know your answer to this question that you started with.

If you were to say you’re right, your client in fact is disabled, is it then necessary to say everyone who wears false teeth or eye glasses is also disabled, or can you find a line that separates out those two instances?

You started down that track.

You used the word, permanent.

I’ve seen the word, easy, I’ve seen the word, easily correctable, I’ve seen a lot of words floating around.

I want to know, in your opinion, is there a way of drawing the line.

Stephen G. Breyer:

What is it?

Stephen R. McAllister:

–There is a line that can be drawn, Justice Breyer, and the line would be between what would be considered minor or trivial impairments and serious impairments.

It’s effectively the line the Fifth Circuit drew.

Antonin Scalia:

We’re not here to draw lines.

I mean, I’m looking for a line that’s in the statute.

I am sure you can draft a statute that would solve that problem, but the issue is, does this statute have any such condition in it, and if so, what language do you rely upon that allows us to make this distinction.

Stephen R. McAllister:

In the–

Antonin Scalia:

I could write it in.

I mean, that’s very nice.

It’s not the business I’m in.

Stephen R. McAllister:

–In the findings, Justice Scalia, the finding that UPS talks about in its brief to some extent, Congress speaks to people who have characteristics beyond their control, and there’s a lot of legislative history that makes clear they were not concerned about minor, trivial impairments.

Ruth Bader Ginsburg:

But Mr. McAllister, that appears in the same paragraph that uses the classic suspect category language, discrete and insular minority, politically powerless.

I think that there must be many hypertense people among the politically powerful.

[Laughter]

Ruth Bader Ginsburg:

So if we take the–

Antonin Scalia:

–Myopics of the world unite.

[Laughter]

Ruth Bader Ginsburg:

If we take the rather vague definition of disability, and if we’re trying to find out what Congress meant by impairment, well, all these things are impairments, but substantially limit one or more activity, then why isn’t it proper to go back to the findings and purpose and say, well, there’s a number here, and that number would be just multiplied if we took your view of what is a disability, and the group… one thinks of the children that were once herded off into a room for special education as belonging in that discrete and insular minority category, but not someone who may have poor vision but be the brightest student in the class.

Stephen R. McAllister:

With all due respect, Justice Ginsburg, Congress did not intend… and this is replete throughout the legislative history, I mean, just the way the statute works as well… did not intend this statute to apply only to sort of traditional stereotypes about who is or is not disabled.

Now, there are lines that can be drawn so that it may be not all 100 million or however many people have myopia are covered, and Justice Souter has suggested one of those.

It is, substantially limits can be made based on an average assessment, which means not everyone with near-sightedness is necessarily disabled.

Ruth Bader Ginsburg:

Maybe we could deal with hypertense, because that’s–

Stephen R. McAllister:

Hypertension is the same way.

Hypertension begins medically at 140 over 90.

Vaughn Murphy unmedicated is 250 over 160, the most severe stage that the doctors recognize.

It may well be that a lot of the people around 140 over 90, or 150 over 100, are not substantially limited, whether or not you consider mitigating measures like medication.

Vaughn Murphy–

Ruth Bader Ginsburg:

–Mr. McAllister, may I just ask you why you… you made a concession.

Maybe you didn’t.

I thought your position was that this man, even with the medication, can’t get himself down to normal because then he’d have all these horrible side effects.

Ruth Bader Ginsburg:

The court of appeals seemed to have that drop from view, and your argument this morning seems to say you’re ready to let it drop from view.

Stephen R. McAllister:

–Justice Ginsburg, we disagree with the court of appeals’ conclusion.

It did conclude that on medication he functions completely normally.

We disagree with that, but for purposes of this issue, we’re willing to accept some–

Ruth Bader Ginsburg:

Well, wouldn’t you want at least that issue to be open on remand?

Stephen R. McAllister:

–We would love to have that issue open on remand.

Ruth Bader Ginsburg:

Well now, what–

William H. Rehnquist:

–If you… if you’re not challenging it here, and the court of appeals took a particular position on it, I don’t see how it could be open on remand.

Antonin Scalia:

It–

–It’s not in your questions presented here.

Stephen R. McAllister:

That’s why I said this morning we’re willing to accept and have this decided on the grounds that he is functional–

William H. Rehnquist:

Yes, that’s pretty much your position, yes.

Sandra Day O’Connor:

But you did raise, I take it, and we granted cert on the question whether there was a genuine factual dispute about whether respondent regarded the petitioner as disabled–

Stephen R. McAllister:

–Yes, we did.

Yes, we did.

Sandra Day O’Connor:

–and fired him for that reason, so if we disagree with you on the first question and think you do consider it in the medicated state, we might conclude that the court below erred on the regarded as prong.

Stephen R. McAllister:

Yes, Justice O’Connor, that would be precisely our position.

Antonin Scalia:

Maybe you should say a few words about the regarded–

Stephen R. McAllister:

I’d love to Justice Scalia.

Antonin Scalia:

–I’ve stopped you.

I’m sorry.

Stephen R. McAllister:

The regarded-as prong is a very important part of the definition for precisely the reasons this case demonstrates.

If you take into account the mitigating measures, people like Vaughn Murphy may not be covered under the first prong, but it’s clear Congress intended to cover, for example, diabetics, epileptics, people who have mitigating measures one way or the other, and in our view he is covered either under the first prong or he’s covered under the regarded-as prong.

UPS is arguing on the regarded-as prong is basically he failed to meet a qualification standard that we think was set basically by the Department of Transportation, but in our view that’s wrong.

That is a later issue in the statute.

That should not have been imported into the regarded-as prong, otherwise an employer would always be able to at least assert that we didn’t fire or not hire this person because of their impairment, we fired them because they failed to meet a job qualification, and then the only way around that would be to try to prove that’s a pretext, but in our view that’s not how the statute works.

The qualification issues, Murphy’s ability to do the job, whether or not he can qualify under DOT regulations, which the Solicitor General asserts that he may be able to as do we, is all later.

We never got to those later inquiries, so we never had a chance to actually litigate whether or not he could meet the Department of Transportation requirements.

That’s what we’d like to get back to the lower courts and do.

With the Court’s permission, I’d like to reserve the remainder of my time.

William H. Rehnquist:

Very well, Mr. McAllister.

Mr. Feldman, we’ll hear from you.

James A. Feldman:

Mr. Chief Justice, and may it please the Court:

When Congress enacted the ADA, it intended to cover people who have epilepsy or diabetes, people who can only walk with the assistance of prosthetic devices, and people like Mr. Murphy, who has a very severe case of hypertension, intended to cover those individuals even if they can take mitigating measures that alleviate some of the hardships that are caused by their conditions.

It is, in fact, precisely because their conditions cause those hardships that they take the mitigating measures.

Now, that doesn’t mean that those individuals are going to win every claim that they bring.

It still has to be shown that they can perform the essential functions of their job.

William H. Rehnquist:

What’s your answer to the 43 million finding of Congress?

You know, it’s a rather specific number, 43 million.

James A. Feldman:

Right, and I think that under respondent’s view of the statute there would be a lot fewer than 43 million.

I’m not sure how many exactly there are going to be, because I don’t know any way to count all of the claims that might come up under our view of the statute.

Antonin Scalia:

Do you know how the 43 million figure was developed.

I don’t use legislative history, but I understand that you do.

[Laughter]

Antonin Scalia:

And I understand that it came from census–

James A. Feldman:

It came from–

Antonin Scalia:

–from census reports which contain the question, you know, is your eyesight bad, and the follow-up question, is it still bad with corrective glasses, and that was not counted among the 43 million, if that was the answer.

James A. Feldman:

–I’m not aware that actually the 43 million figure itself came from any specific source, or at least I’m not sure exactly what it is.

There are… there were a number of… there was a number of different studies that preceded congressional action, and it’s clear Congress did just take that number.

John Paul Stevens:

Didn’t it come out of a speech on the House floor by just one of the legislators?

James A. Feldman:

I think maybe that… that may well be.

William H. Rehnquist:

But that isn’t a complete answer.

If someone had said 100 million, you know, there’s a lot of room for hyperbole, but 43 million, that suggests that you’ve got some figure in mind that must have been derived from somewhere.

James A. Feldman:

Right.

I think the–

William H. Rehnquist:

You don’t see 43 million people can’t be wrong.

You say 100 million people can’t–

[Laughter]

James A. Feldman:

–I… Mr. Chief Justice, I’m not able to enlighten you any further as to the precise sources of that particular number, but what I can say is that there… that our view doesn’t necessarily lead to any larger number than that being disabled, and that respondent’s view clearly leads to a smaller number, I think, a smaller number than that, people who can only walk with prosthetic devices, who have epilepsy or diabetes, the kinds of serious conditions that Congress intended the ADA–

Antonin Scalia:

Why would they not be included in respondent’s count?

Antonin Scalia:

I think they surely would be.

You mean that someone who can only walk with a walker is not impaired, even with the walker, in major life activities?

James A. Feldman:

–No, but to take, for example, one of the examples that’s given in the EEOC’s regulations, if you take someone who can only walk with an artificial leg, who has only a partial leg and needs a prosthetic device in order to walk, I think respondents would be arguing that person is not disabled, because if he straps on the artificial leg he can actually walk pretty well.

Antonin Scalia:

He can’t play tennis.

James A. Feldman:

Well–

Antonin Scalia:

He can’t play a lot of sport… I mean, they may argue that.

I’m not sure they’re going to win.

James A. Feldman:

–Right, but I think–

Antonin Scalia:

Are you willing to concede that if we come out… if we come out the way you don’t want us to come out, that someone who has a prosthetic leg is not disabled?

James A. Feldman:

–But… no, but I… no, I’m not, but I–

Antonin Scalia:

I wouldn’t think so.

James A. Feldman:

–No, I’m not, but I think the lower courts, some lower courts, since the enactment but not before the enactment of the ADA, have held that conditions such as epilepsy and diabetes are not disabilities because individuals can take medication for those illnesses, and I do think that, as prostheses are getting better, and there will definitely be arguments, and I think respondents–

Sandra Day O’Connor:

Well, but you still have the regarded-as prong, Mr. Feldman, to protect against mistaken beliefs as to the person’s ability, and I would think that that would make the scheme work pretty well, and then if he’s regarded as disabled, despite the corrective measures, you have a question of whether he’s qualified, nonetheless, and the scheme works.

James A. Feldman:

–That’s–

Sandra Day O’Connor:

I don’t see why it’s either necessary or desirable to adopt your view of the meaning of the first question.

James A. Feldman:

–Well, with… if the Court were to adopt a reasonable interpretation of the regarded-as prong, which I don’t think is the interpretation that in my view respondent has advanced, it would take some of the pressure off of the first prong, so insofar as that’s true, I’d agree with you.

Nonetheless, it still is true that I think Congress, when it enacted the statute, used language about substantially limiting a major life activity which I think is open to either interpretation.

The committee reports, three different committee reports made quite clear that that meant that mitigating measures were not supposed to be included when you’re considering whether someone has a disability.

John Paul Stevens:

Turning to the regarded as for just a second, supposing a company like this one has a flat rule on blood pressure, that over a certain figure, you’re ineligible for the job.

Would that mean, within your understanding of regarded as, that they regard everybody who doesn’t pass that test as disabled?

James A. Feldman:

Yes.

John Paul Stevens:

So that would mean–

Antonin Scalia:

–It just means they can’t do this job… I’m sorry.

John Paul Stevens:

That would mean, then, that any physical, flat rule for job qualification would violate the statute.

James A. Feldman:

There… no.

There is a qualification, and the qualification is, it has to be a class of jobs or a range of jobs in a variety of classes.

If it’s just a particular job, if there is someone who… I mean, one of the examples in the pre-ADA case is an accountant who has agoraphobia.

If an employer has a job only on the 37th floor and says, I’m not going to give you that job because you have agoraphobia, that could reasonably be seen as saying you’re excluded from only a particular job, and we’re not viewing you as disabled in the major life activity–

John Paul Stevens:

No, but in this case, is the limit is a limit on blood pressure at a certain pair of figures, it seems to me that if… everybody who flunks that test is in the view of the company is regarded as disabled because they don’t have the required physical characteristic.

James A. Feldman:

–But I think that the company is viewing those individuals as unable to… if they’re otherwise the type of people they would be employing for truck driver… for a broad range… a broad job category like truck drivers or something–

John Paul Stevens:

Which would mean… I mean, maybe this is right.

I’m just trying to think it through.

It would mean, it seems to me, that every physical requirement, at least with regard to blood pressure, would fall, and the company would have to be able to prove that there’s an independent reason for not hiring the person.

James A. Feldman:

–I don’t think that that’s true.

I don’t think that that’s true.

John Paul Stevens:

Why not?

That’s what I need help with.

James A. Feldman:

The reason it’s not true, because I think that companies would have to prove that those kinds of qualifications for jobs, if they affect a broad category of jobs, are things that can be justified under the statute.

Antonin Scalia:

Being a truck driver is a major life activity?

Sandra Day O’Connor:

And of course the statute–

James A. Feldman:

I beg your pardon?

Antonin Scalia:

–Being a truck driver is a major life activity?

What about being one of these people that put up skyscrapers and run along beams, and the company has a rule, you know, if you have a mild agoraphobia you can’t do it, and you’re saying he’s excluded from a major life activity.

He can’t… I don’t know.

There’s a name for those people, whatever they are.

James A. Feldman:

I think you look at the… at whether there’s a class of jobs involved.

You don’t look–

Antonin Scalia:

That’s a class of jobs.

James A. Feldman:

–Right.

Antonin Scalia:

You’re saying any class–

James A. Feldman:

No.

Antonin Scalia:

–Being excluded from any class of jobs is being excluded from a major life activity.

James A. Feldman:

No, I… yes.

I think being excluded from–

Antonin Scalia:

I can’t be an accountant.

James A. Feldman:

–Yes.

Being excluded from a class of jobs which are the natural jobs that you have the training, skills and experience to do, I think that is substantially limiting in the major life activity of working.

As the Court said in Bragdon, the act doesn’t deal with utter inabilities, but just substantial limitations.

Ruth Bader Ginsburg:

Mr. Feldman, I thought that Mr. Murphy’s work activity was a mechanic, and nothing involved in this case touches mechanic.

It’s only driving, as I understand, so his major life activity, his major work activity was fixing cars?

James A. Feldman:

Fixing trucks.

Ruth Bader Ginsburg:

Yes, and… which he could do at a location, so I don’t understand why this case as opposed to some others maybe the one tomorrow where they couldn’t be pilots, but this, his major work, he can do.

He just can’t drive–

James A. Feldman:

Let me make… let me distinguish between two things.

What the lower court held is that because UPS viewed Murphy as unable to satisfy the DOT safety regulations, it therefore did not regard him as substantially limited in employment.

That’s the holding of both of the lower courts below, and that’s the only holding that either of them–

William H. Rehnquist:

–The test isn’t substantially limited in employment, is it?

I thought substantially limited in a major life activity.

James A. Feldman:

–A major life activity.

Working is a major life activity.

William H. Rehnquist:

Well, does unemployment… an unemployed person have no major life activity?

James A. Feldman:

Well, not every individual may have each of the listed major life activities.

It… but certainly for Murphy working, and certainly for most of us working is a major life activity, but what I’d like to distinguish is between that holding, which is wrong, the holding that because he can’t satisfy the DOT regulation, he therefore was not regarded as a major… as a limited in the major life activity of working, with a second point which UPS has made in its briefs in this Court but which wasn’t reached in the courts below, and that’s the question of whether the class of jobs involved in this particular case that UPS viewed Murphy as unable to do, whether that was sufficiently broad.

That’s an issue that hasn’t… that it seems to me to be in dispute at this point, and neither court below looked at the summary judgment record and made any analysis on that point, and so therefore I think an appropriate course with respect to that would be to remand the case to the lower courts.

I mean, to be a little bit more specific, what Murphy–

William H. Rehnquist:

Thank you, Mr. Feldman.

James A. Feldman:

–Thank you.

William H. Rehnquist:

Mr. Kilberg, we’ll hear from you.

William J. Kilberg:

Mr. Chief Justice, and may it please the Court:

Before I go any further with my remarks, let me provide the Court with some information that I believe was requested in both Mr. McAllister and Mr. Feldman’s argument.

At page 13 of our brief and at page 21 of respondent’s brief in the United case is the legislative history, the background of the 43 million number.

I would also point out that in our brief the citation is given as 135 Congressional Record 8901.

It should be 8601.

This is… I apologize to the Court.

This is the result of my impairment–

Antonin Scalia:

–a lot of trouble, Mr. Kilberg.

I was really troubled by it.

William J. Kilberg:

–Well–

I mention it, Justice Scalia, only because I was pointing out my own impairment, which I deny is a disability.

[Laughter]

William J. Kilberg:

I would also note, again with regard to the 43 million figure, that there is a substantial number of persons who are, as a result of myopia or other correctable vision impairments, unable to drive, and a number of courts of appeals have held that driving is, in fact, a major life activity, so that number would exceed 43 million in any event.

Unlike petitioner and his amici, who rely almost exclusively on legislative history and deference arguments–

John Paul Stevens:

May I ask, before you leave the 43 million, could you tell me, identify what you think are the components of that class of 43 million?

How do they… how–

William J. Kilberg:

–Certainly.

This was a… the 43 million figure was derived from census data.

Congressman Coelho explained the 43 million in a speech on the floor of the House, and he explained that census data, which I think he said projected some 36 million people… the actual number happened to have been 37 million, but he said some 36 million people are disabled.

That census data in turn relied–

John Paul Stevens:

–Yes, but there’s no… well, go ahead.

I’m sorry.

William J. Kilberg:

–It relied on a survey of Americans which actually looked to functional limitations, and took into account mitigation or ameliorations.

John Paul Stevens:

It seems to me… you mean, that survey was prepared by the Census Bureau?

William J. Kilberg:

That survey was prepared… yes.

That was a Census Bureau survey.

John Paul Stevens:

And is that Census Bureau survey identified somewhere by name so I could read it if I wanted to?

William J. Kilberg:

It is identified in the legislative history which is cited in our brief and in United’s brief.

I believe it’s the… it was a study that was called the Threshold of something.

I can’t remember the full name at the moment.

John Paul Stevens:

What you cite on that page is something called Bureau of the Census Disability Functional Limitation of Health Insurance Coverage, 1984-1985, P-70, that’s what you’re talking about?

William J. Kilberg:

That’s what I’m talking about.

John Paul Stevens:

Okay.

William J. Kilberg:

That data, and then the way they got to the 43 million–

John Paul Stevens:

Then my next question is, it says there’s 37, 3 million people with a functional limitation.

William J. Kilberg:

–Yes.

John Paul Stevens:

Can you give me some examples of the functional limitation that made up that figure, or it’s just a ball park figure?

William J. Kilberg:

It’s a… I suspect it’s a bit of a ball park figure, and then Congressman Coelho then added to it by saying that the number has been growing, and so he then estimated it to be 43 million as of the time of the act, because this was 19… I believe 1980, or maybe it was 1990 census… no, it must have been 1980 census data, and he was estimating–

John Paul Stevens:

For example, would I be able to tell from that document whether someone who had… say, was legally blind, without glasses, had 2200 vision but who could wear glasses and be corrected to 20/20, whether that person would be in the figure or out?

William J. Kilberg:

–Yes, you would.

John Paul Stevens:

You could tell?

William J. Kilberg:

Yes, and you would find that that person was not counted.

John Paul Stevens:

Even if that person was legally blind?

William J. Kilberg:

That’s correct, so long as the person had correctable vision to normal.

Unlike–

Stephen G. Breyer:

If you look through there, would you discover, for example, that people who have, let’s say prosthetic limbs, or the people who have high blood pressure of an unusual nature… I mean, really quite high… that they were counted or not counted?

I mean, could that be used as a basis–

William J. Kilberg:

–That would–

Stephen G. Breyer:

–for going through and deciding where and under what circumstances a corrective device would or would not be counted in deciding whether a person was disabled?

William J. Kilberg:

–No, Justice Breyer, not with that–

Stephen G. Breyer:

Why not?

William J. Kilberg:

–Not with that degree of specificity, but what you–

Stephen G. Breyer:

All right.

If it can’t, does it nonetheless take an approach, so that an agency, seeing a silence in the statute as to the counting of corrective devices, or mitigating devices, that an agency, with that as a guide, could create lists as to when you do count a corrective device, when you don’t count one, always with the notion of combatting prejudice as the guiding goal?

Is that possible?

William J. Kilberg:

–But the statute here provides a definition, and–

Stephen G. Breyer:

It doesn’t say anything about corrective device.

I thought in respect to whether you looked at substantial… you know, substantial impairment with corrective device, or without, was a matter on which the statute itself was silent, though the history may make a suggestion.

William J. Kilberg:

–No, I disagree.

I believe the statute–

Stephen G. Breyer:

Well, what does it say?

Is, because of is versus would?

William J. Kilberg:

–Well, we believe that this case begins and ends with the language and structure of the statute.

Stephen G. Breyer:

If I accept that you’re right.

If I don’t accept that, I’m still interested in your reaction to the idea that it’s up to the agency case by case, or kind by kind, et cetera.

William J. Kilberg:

Well, the… we believe here that prong 1 of the statutory definition defines disability as an impairment that substantially limits the major life activities of a particular individual.

Brought down to this case, it simply cannot be said that Mr. Murphy’s impairment substantially limited his major life activities, because as a result of his medication he does not suffer any limitations, and his personal physician so testified, and that’s… in terms of the joint appendix, I would refer the Court to 63a of the joint appendix.

Dr. Doubek, who is physician to Mr. Murphy, said in deposition, he functions normally doing every day activity that an every day person does.

William H. Rehnquist:

Yes, I think, Mr. Kilberg, that the petitioner has said that is the way the case should be accepted here, so I don’t think that point is in contention.

Antonin Scalia:

Mr. Kilberg, I assume that if we reject your is argument, I mean, even if one assumes that your is versus would argument is wrong, it is still your position that the statute requires an either-or.

I mean, either corrective measures are included, that’s a plausible interpretation of the statue, or corrective measures are not included, which may be a plausible interpretation of the statute, but I don’t see any way to interpret it to say that corrective measures are included sometimes, frequently used corrective measures are included, but corrective measures are not included sometimes.

William J. Kilberg:

I agree there is–

Antonin Scalia:

Is there any way to get that out of the language?

William J. Kilberg:

–No, there is no way to get that out of the language, Justice Scalia.

Stephen G. Breyer:

That’s what I want, exactly the question I–

William J. Kilberg:

I’m sorry, no.

Stephen G. Breyer:

–put it, because the–

William J. Kilberg:

I did not understand–

Stephen G. Breyer:

–the way I… what I wanted you to focus on, just that question, is that isn’t it very frequently you find a statute which is silent on the subject, and rather than reading it either-or, it becomes up to the agency to say where, looking at the purpose of the statute, you would do it this way, and where you’d do it the other way.

Indeed, I gather in most cases in the Government they do look at the person’s condition without corrective devices, but in the case of glasses, the Social Security Administration looks at them with corrective devices, so why do we have to say either-or?

Why couldn’t it be up to the agency to say where and when and under what circumstances?

William J. Kilberg:

–Because in this case, Justice Breyer, the statute is clear.

I believe the language of the statute is subject to only one interpretation.

The term disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual.

Anthony M. Kennedy:

Well, could the agency say that substantially limits is very easily complied with, you just put your glasses on and off, but in other cases, medication has to be taken in a certain dosage, and you have to be very, very careful about it, and so that there’s a distinction in the two?

I’m just… I suppose they could try to tease that meaning out of the text.

I think it’s difficult, but–

William J. Kilberg:

It is difficult, Justice Kennedy.

I suggest it is more than difficult, it’s impossible.

Anthony M. Kennedy:

–Yes.

Sandra Day O’Connor:

I don’t know why you’d want to get into anything like that.

The statute either is all or not.

I mean, you either correct it or you don’t, and if you look at it in its corrected state, you still have to make an individualized determination, don’t you–

William J. Kilberg:

That’s correct.

Sandra Day O’Connor:

–under the statute?

William J. Kilberg:

That’s correct.

Sandra Day O’Connor:

It could be that someone takes medication, but it doesn’t totally cure the problem and the person is still disabled, and you would look at the individual circumstance, would you not–

William J. Kilberg:

That is correct.

Sandra Day O’Connor:

–under the statute?

William J. Kilberg:

That is correct, Justice O’Connor, and indeed, one of the major inconsistencies in petitioner’s argument, or the EEOC’s argument, is that throughout the EEOC’s regulations and their compliance manual and so on, they talk in terms of actual effect, actual impact, the results on an individual, which is inconsistent with this notion that you don’t take mitigating measures into account.

Stephen G. Breyer:

I’m not giving up yet.

That is to say, is… there’s a lot of unfounded prejudice, perhaps, against people with artificial limbs, or perhaps hearing aids, even, or where you take medicine, i.e., I don’t mean prejudice.

Stephen G. Breyer:

I mean, people just don’t understand it, and that’s not true of glasses, and therefore you focus the statute on those people who Congress was worried about, those kind… and you leave out of the statute those kinds of ordinary sorts of things that really are not part of the problem.

That would be the rough outline of an approach that tries to leave some of this up to the agency.

William J. Kilberg:

And I believe, Justice Breyer, that the star… the Congress came to a similar conclusion to yours, but they did it with prongs 2 and 3.

They said that you cannot discriminate against someone because they have a record of a substantial limitation on a major life activity, nor can you discriminate against someone because you perceive them as having a substantial limitation on a major life activity.

Stephen G. Breyer:

All right.

If we’re looking at what they actually thought about that, those reports do talk about hearing aids, and they talk about artificial limbs, as if they meant it to come under 1, don’t they?

William J. Kilberg:

No.

Stephen G. Breyer:

They don’t.

William J. Kilberg:

I don’t believe so, no.

Ruth Bader Ginsburg:

But if… Mr. Kilberg, if what we’re thinking about is the correction, and… it was brought up, well, what about a permanent correction through surgery as opposed to a pill every day.

Justice O’Connor focused on the regarded-as.

Isn’t the argument for the petitioner here that whether I’m disabled or not, my employer, or would-be employer, would not accept the correction, that the correction was unacceptable so is treating me in my uncorrected state, so maybe corrected state says I’m not disabled, but the employer is treating me in my uncorrected state, therefore is rejecting the correction, therefore is regarding me as disabled?

That’s what I thought was the argument that the petitioner was attempting to advance.

William J. Kilberg:

In the record here, however, there’s simply no evidence that UPS perceived Mr. Murphy as being substantially limited in the major life activity of working.

David H. Souter:

But isn’t the question not whether they perceived him in a subjective sense, but how they treated him?

Isn’t that what regarded means, did they treat him as if he were disabled?

William J. Kilberg:

I don’t believe so.

The–

David H. Souter:

Don’t believe they did treat him, or don’t believe that that’s the–

William J. Kilberg:

–I don’t believe that that’s the correct reading of–

David H. Souter:

–So that you believe the reading for regarded is in effect subjective state of mind?

William J. Kilberg:

–Yes, and I–

David H. Souter:

Then the results are going to be extraordinarily disparate, I suppose, because in the one… I mean, take this case.

Take this case.

If, on your view in their heart of hearts they said, oh, this guy’s just as disabled as he ever was, the statute covers.

If, on the other hand, they say, look, we’re going to treat him as disabled and we’re going to do it because we have a view, perhaps erroneous, perhaps correct, of what DOT requires, then you’re going to get a different result, and it seems to me you would get kind of an odd patchwork of application if you take your subjective view.

William J. Kilberg:

–The… I believe the case law under the Rehabilitation Act and under the Americans With Disability Act is quite consistent on the point that it is the subjective view.

The question is, how did the employer perceive the–

Sandra Day O’Connor:

Well, I would think the employer’s treatment of Mr. Murphy itself is some evidence of their attitude that he wasn’t qualified, and I don’t understand how a summary judgment could have been rendered on that issue on these facts.

I would think that would be open to litigation, and then you would have to ultimately determine whether he was qualified or not.

William J. Kilberg:

–In this instance, Mr. Murphy had been employed for 22 years as a mechanic.

He had worked all that time without ever needing a DOT health card.

Within 2 to 3 weeks of his having left employment with UPS, he obtained another job as a mechanic without any need for DOT health card.

I don’t think there’s any question that he’s not substantially limited in working.

The question then becomes, did UPS have a different perception.

There was no evidence put into the record with regard to the number of employers like UPS who require mechanics to have a DOT health card to be able to drive in interstate commerce.

The only evidence in the record is evidence that UPS put in of its own expert which showed the number of jobs that Mr. Murphy is perfectly qualified to handle.

UPS perceived Mr. Murphy as being unable to work for it as a mechanic, a very particular job, because he did not have a valid DOT health card, and therefore could not engage in road tests and road calls.

Antonin Scalia:

How come he worked for the prior 23 years without it?

I mean, what had changed?

William J. Kilberg:

It suggests… he had not worked for UPS.

He had worked for other employers.

It suggests that other employers employing individuals as mechanics did not require them to drive large vehicles in interstate commerce to test–

William H. Rehnquist:

What if actually DOT didn’t require what UPS thought it required?

William J. Kilberg:

–The issue would still be UPS’s perception.

It may well be evidence of that perception, but as to what DOT did or did not require, but the underlying question always remains, did the employer regard the individual as being substantially limited in a major life activity, here the life activity of work?

Did they perceive–

John Paul Stevens:

Are you saying that if they had a special rule, a very strict rule on blood pressure that nobody else in the industry had, because they thought that’s a health requirement relating to safety and all the rest, wouldn’t one say that whether… regardless of what all the rest of the industry regarded as disability, that UPS regarded anyone who did not meet that standard as being disabled?

William J. Kilberg:

–They may be regarding that criteria as a necessary criteria for their job.

That’s more a perception of the job than it is a perception of the individual.

John Paul Stevens:

Well, it’s a perception of every individual who fails the… who doesn’t meet the standard.

William J. Kilberg:

And in those circumstances it would be evidence that the plaintiff could put in to show what the employer’s perception might be.

John Paul Stevens:

Well, isn’t this–

William J. Kilberg:

–but in this case there is no such evidence.

John Paul Stevens:

–Does it answer the evidentiary issue itself?

I mean, what would be your response to the evidence which I think is in this record that they did have that standard, he didn’t meet it, ergo, he was regarded by UPS as being disabled at least with respect to this line of work?

William J. Kilberg:

Because again there is… the only line of work that we would be talking about here if we got to that point, the only class of job are mechanic’s jobs, which require someone to drive in interstate commerce.

We have no evidence in the record, there’s no evidence on which a reasonable jury could determine that that is a substantial limitation on the life activity of working.

That merely suggests that this individual is not qualified–

John Paul Stevens:

You mean, the availability of jobs in other companies always is a defense to your saying, we won’t hire people with this characteristic?

William J. Kilberg:

–Indeed, even the EEOC in its regulations looks to not only the number of jobs, but the number of jobs in the geographic area.

You have to show that he was perceived as being substantially limited in a number of jobs in that geographic area, jobs for which his skills and training would permit him.

Here, we have nothing in the record like this.

Antonin Scalia:

Well, this wasn’t UPS’s regulation anyway.

It isn’t–

William J. Kilberg:

No.

This is–

Antonin Scalia:

–It isn’t that UPS deemed him unqualified because of blood pressure.

It’s that UPS could not hire him because of a DOT regulation, wasn’t it?

William J. Kilberg:

–That’s correct.

If UPS–

Antonin Scalia:

Would UPS have been in violation of the law if it hired him?

William J. Kilberg:

–Yes, Justice Scalia.

He would… they would have been in violation of the law, and they would have been subject to both civil and criminal sanctions.

Antonin Scalia:

Well, it’s hard to see, then, that it’s… UPS’ mere compliance with the law is any indication of what UPS deemed.

They were just obeying the law.

Is that conceded by petitioner?

William J. Kilberg:

It is… the petitioner takes the view that there was an opportunity to depart from the DOT guidelines.

Ruth Bader Ginsburg:

That you could get a waiver from the DOT, and that’s hotly contested, and the… I think the other side, in all fairness, is taking the position that the… this person was qualified, indeed got a certificate from the DOT saying he could drive.

There’s one issue that seems to be blended, blurred, and frankly I’m confused.

It’s come up in a lot of the questions.

Once you’re in the category as regarded as, then there’s still the further question, are you qualified to do the job?

What is the difference between those two standards?

One is, does the employer regard you as disabled?

If the answer to that question is yes, we go to the next step.

The next step is, are you qualified for the job?

Now, how are those two different?

William J. Kilberg:

They really are separated.

There’s some confusion because the court of appeals was responding to an argument that petitioner had made below that UPS had acted based upon myth and stereotype.

The court of appeals was seeking to make the point that Justice Scalia just made, which is that the… that UPS was not acting on myth and stereotype, they were acting on a Government standard.

William J. Kilberg:

But the issue, and the issue I think is clearly dealt with in the district court decision, the issue is what UPS perceived Mr. Murphy to be substantially limited in, if anything, and here all UPS did was perceive Mr. Murphy quite accurately as being unable to meet the DOT criteria.

Antonin Scalia:

Well, let’s–

–Well, what you’ve said about the standard, I can’t believe that the standard for deemed disabled is, you have to regard him as disabled for all work of this sort in the industry.

That would enable a company to say, we have special standards.

I don’t care, the rest… everybody else in the industry will hire asthmatics.

We don’t like asthmatics.

We’re not saying… we’re not deeming you to be disabled, because we acknowledge you can get a job in a lot of other places.

That would be okay.

William J. Kilberg:

Well, indeed–

Antonin Scalia:

That would be okay.

William J. Kilberg:

–That would be okay.

Antonin Scalia:

Wow.

That seems very counterintuitive.

People don’t–

Sandra Day O’Connor:

–That depends on how you interpret the statutory requirement, a class of jobs.

William J. Kilberg:

Yes.

Sandra Day O’Connor:

And we have a case coming up that gets us into that I think–

William J. Kilberg:

Yes.

Sandra Day O’Connor:

–in a day or so.

David H. Souter:

Could we go back to Justice–

William J. Kilberg:

That’s correct.

David H. Souter:

–I’m… are you done?

William J. Kilberg:

Yes.

David H. Souter:

Could we go back to Justice Ginsburg’s question?

Let’s assume we had a case in which there… we did not have the feature of the DOT regulation, and the question was, number 1, did they regard the person as disabled, and the answer was yes, was the person qualified.

Don’t the two questions in effect merge, because if they regard the person as disabled, I assume they are doing it for an illegitimate reason.

If the person is qualified, that in effect is another way of saying the reason was illegitimate, so could you give me an example of a case in which the employer would fail the deemed… the regarded prong and win on the qualification prong?

William J. Kilberg:

Fail the regarded prong and win on the qualification.

David H. Souter:

In other words, it was… you regarded the person as disabled, but it was perfectly… given the definitions of disabled, but the person was nonetheless not qualified.

Well, that might be this very case, if the statute contemplates that an employer can rely on other Government regulations or employment requirements such as the requirement of DOT that no driver can have hypertension above a certain level.

David H. Souter:

But the assumption of the question was that we get DOT out of here.

How do the two… how do those two standards work if we don’t have a Government regulation superimposed on this, that the employer can say, well, I’m not doing the deeming, DOT is doing the deeming.

Assume no DOT.

How does it work?

William J. Kilberg:

You would have to have a situation where the employer perceived the individual as being substantially limited in a major life activity, and the… presuming that the individual was not, but the individual… HIV might be a good case of that, where the individual… the employer assumes, regards the individual as being unable to function.

The tuberculosis case, the Arline case that this Court dealt with some years ago, might be an even better example, because that was, as I recall, a regarded-as case, where the school district regarded the individual as being unable to function because she had a contagious disease, tuberculosis.

The Court dealt with the qualification issue separately in that case, as I recall, by remanding to the lower court to determine whether in fact there was a direct threat.

David H. Souter:

But I would think that in every case in which the Court ultimately said yes, the person is qualified, the Court would in effect be saying, your basis for deeming the person unqualified was an illegitimate basis.

That’s why I… the two seemed to me to be virtually inseparable unless you get, as Justice O’Connor said, a kind of a third party criterion working as your reason for defending against the regarded.

William J. Kilberg:

Well, but certainly employers can set physical standards.

Numbers of employers have set physical standards with regard to lifting, for example, and the courts have accepted those as not being indicative of disability and said those are perfectly legitimate standards.

You may need 25 pounds to lift, to be able to lift 25 or more pounds, and have done that at the initial stage, and individuals who cannot lift more than 25 pounds have not been regarded as being disabled, because that’s not viewed as a substantial limitation on a major life activity.

Ruth Bader Ginsburg:

Mr. Kilberg, do I understand your argument correctly to say that people who have diseases with dread names but are very well controlled by a pill a day, like an epileptic, like a diabetic, that they would be the same, they would not be disabled for purposes of this statute?

William J. Kilberg:

To the extent that the ameliorative measure… in this case, we’re talking about pills… in fact put them on the other side of the line.

That is to say, with their medication they were not substantially limited in a major life activity.

Some of those conditions you name can be very severe, so that even with medication–

Ruth Bader Ginsburg:

So that hypertension could be in that category.

William J. Kilberg:

–It could be in that category.

It is not with regard to Mr. Murphy.

John Paul Stevens:

May I ask this question, just for your comment?

Given the uncertainty, particularly on the regarded as point, and the possible ambiguity on the other, would you comment on your view as to whether it would be appropriate to look at legislative history in this case?

William J. Kilberg:

No.

[Laughter]

John Paul Stevens:

No, you won’t comment?

William J. Kilberg:

The answer is yes, I would comment, and no, I don’t believe that we need to look at the legislative history.

John Paul Stevens:

And why not, other than offending Justice Scalia?

William J. Kilberg:

Well–

[Laughter]

The… for a… first–

Antonin Scalia:

And good reason.

William J. Kilberg:

–First, because the statute is clear.

The plain meaning of the statute is clear.

John Paul Stevens:

If regarded as is perfectly clear, too.

William J. Kilberg:

And I believe it’s clear on regarded as.

If you turn to the legislative history, what you’re going to see is a mixed record, with the Senate reports supporting respondent’s position, UPS’ position, and with the House reports being somewhat mixed, but at least having language that petitioners can use to argue their case.

We don’t think that it’s necessary in this case to go beyond the plain meaning of the statutory language.

David H. Souter:

But if we do go beyond it, and I agree with you, I looked at the legislative history, and I think it takes you in each direction.

I can’t get any help from it.

If we agree with you on the legislative history, we don’t agree with you on plain meaning, why don’t we defer?

William J. Kilberg:

The… frankly, because the agency’s interpretation itself doesn’t have the power to persuade.

It’s internally inconsistent, it’s inconsistent with their own regulations.

David H. Souter:

Well, we may say that… I’m not saying this, but we may say they have done a far less than perfect job in the consistency of their regs, and I… you know, I understand your argument there, but there isn’t any question the position that the agency is taking in relation, not only to this case, but to cases of a class like this, and isn’t that enough for some degree of deference if we’re looking for a tie-breaker?

William J. Kilberg:

In fact, even there, Justice Souter, you have to say that the agency is taking diametrically opposed positions.

The agency takes the position that mitigating measures may be taken into account if they’re harmful.

Petitioner and the Solicitor General take the opposite position on that.

The agency took a different position in a case it ruled upon 3 months before the ADA was passed, the Kienast v. Frank case, which is cited in our brief, where the agency said, in ruling upon a case coming to it from the Postal Service, that mitigating measures were to be taken into account, so the agency frankly is all over the place.

I don’t see–

David H. Souter:

And in that case there were no side effects from the mitigating measure that would have justified it on their theory.

William J. Kilberg:

–No.

The mitigating measure in Kienast v. Frank was eye glasses.

David H. Souter:

I see.

William J. Kilberg:

And the position that the EEOC took was that… I forget whether it… it was Ms. Kienast, because Frank was the Postmaster General, that Ms. Kienast was not disabled because she was able to wear glasses.

William H. Rehnquist:

Thank you very much, Mr. Kilberg.

Mr. McAllister, you have 2 minutes remaining.

Stephen R. McAllister:

Mr. Chief Justice, and may it please the Court:

I’d like to make just one point about the regarded-as prong, and that is the difference and the importance between the disability determination and the qualification standards question.

The problem for Vaughn Murphy is UPS raises the qualification standard as… the reason they did not regard him as disabled, they simply, in their view, regarded him as unqualified.

That should not be part of the disability determination.

That’s what the next step is about, does he meet the DOT regulation, or does he not, but that is not a question of whether or not Vaughn Murphy was regarded as disabled.

Unless there are further questions, thank you.

William H. Rehnquist:

Thank you, Mr. McAllister.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.