Americans with Disabilities Act Technical Assistance Letters

795

July 27, 1999

The Honorable George Voinovich

United States Senator

37 W. Broad Street

Suite 970

Columbus, Ohio 43215

Dear Senator Voinovich:

This is in response to your inquiry on behalf of your constituent, xxx xxxx xxxxxx. Xxx xxxxxx earlier wrote to the Disability Rights Section alleging that the failure of Clinical Health Laboratories (Laboratories) to accommodate her Multiple Chemical Sensitivity (MCS)and latex sensitivity violates the Americans with Disabilities Act of 1990 (ADA).

After careful review, the Section has decided against further investigation of xxx xxxxxxxx claims. That decision is based upon resources. The Section receives thousands of complaints each year and does not have sufficient staff to attempt to resolve each one.

xxx xxxxxxxx claims raise some of the most difficult issues under the ADA. Title III of the law and the Department's implementing regulation require a public accommodation to modify its policies, practices, or procedures when necessary to afford its goods and services to an individual with a disability, unless to do so would fundamentally alter the nature of those goods and services. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302. The Laboratories is a title III "public accommodation," but whether xxx xxxxxx is an "individual with a disability" is a question that is less easily answered.

"Disability" is defined in part as a physical or mental impairment that substantially limits a major life activity. 42 U.S.C. § 12102(2); 28 C.F.R. § 36.104. The Department assumed MCS was an "impairment" when it published its title III regulations several years ago. See 28 C.F.R. Part 36, Appendix B - Preamble to Regulation on Nondiscrimination on the Basis of Disability in Public Accommodations and In Commercial Facilities

(Published July 26, 1991) - at p. 585. Since that time, however, the courts have aired considerable medical controversy over the issue.

Assuming MCS and latex sensitivity are impairments, the next step is to determine whether they substantially limit one or more of the individual's major life activities. As the Department stated in the Preamble to its regulation, that determination must necessarily be made case-by-case. We also stated that the determination should be made "without regard to the availability of mitigating measures, such as reasonable modifications or auxiliary aids and services." The Supreme Court in a trio of cases recently held, however, that mitigating measures such as medications or prosthetic devices, used to ameliorate the effects of impairments, should be considered in making this determination. Sutton v. United Air Lines, Inc., 67 USLW 4537 (1999); Murphy v. United Parcel Service, Inc., 67 USLW 4549 (1999); Albertsons, Inc. v. Kirkingburg, 67 USLW 4560(1999).

Finally, xxx xxxxxxxx claims raise the issue of whether the ADA requires the Laboratories to use different medical products and to instruct its employees to refrain from wearing perfume in order to afford xxx xxxxxx its services. The answer to this question depends upon whether such actions can be deemed "reasonable" modifications of its procedures and, if reasonable, whether they would nonetheless "fundamentally alter" the nature of the Laboratories' services.

I am sorry that we cannot assist xxx xxxxxx. Let me also make clear that the Department takes no position on the merits of her ADA complaint. Rather, our decision is one of resource allocation. Please do not hesitate to contact the Department if we can be of assistance in other matters.

Sincerely,

Bill Lann Lee

Acting Assistant

Attorney General

Civil Rights Division

Enclosure