WHY A CORRECTED DISABILITY SHOULD STILL COUNT AS A DISABILITY FOR PURPOSES OF EMPLOYMENT DISCRIMINATION LAW

The Supreme Judicial Court of Massachusetts (SJC) is now considering a case, Dahill v. Boston Police Department, that requires it to interpret the term "qualified handicapped person," in the context of a Massachusetts state law banning employment discrimination against the handicapped.

The plaintiff, Richard Dahill, suffers from a severe hearing impairment, but his hearing is normal when he wears a hearing aid. Dahill completed the twenty-six-week course for becoming a police officer at the Boston Police Academy, but the Department nevertheless dismissed him, because of his hearing impairment.

Dahill sued the Department in federal district court, bringing claims under both the state employment discrimination law and the federal Americans with Disabilities Act (ADA). The Police Department countered his state law claim by arguing that Massachusetts' anti-discrimination law does not apply to people like Dahill, whose disabilities are subject to correction with devices or medication.

Federal Judge Douglas P. Woodlock then "certified" to the SJC the question of whether a person whose disability is corrected by a device or by medication qualifies as a "handicapped person" under Massachusetts law. (Under the certification procedure, a federal court faced with a novel question of state law may, before proceeding with the case, ask the state's highest court to provide a definitive answer to the state law question.)

The position that correctable disabilities are not disabilities has something of a Catch-22 quality to it: Dahill would be damned if hearing aids didn't exist, and he is also damned, according to the Department, if they do.

If hearing aids did not exist, Dahill almost certainly could not work as a police officer. While he would count as a "handicapped person" under state anti-discrimination law, he would probably not count as "qualified" — for hearing is arguably essential to the job of a police officer.

Yet because hearing aids do exist, and render Dahill "qualified," the Police Department argues that Dahill is no longer a "handicapped person" under state anti-discrimination law. Ironically, according to the Department, the very capability that makes Dahill "qualified" ensures that he is no longer "handicapped," for purposes of the law, and that he may therefore be fired with impunity.

As odd as this position might sound, the United States Supreme Court adopted it when it interpreted the ADA in the 1999 case of Sutton v. United Airlines. While that case, which interpreted federal law, is not binding on Massachusetts, the Boston Police Department has invited Massachusetts' highest court to follow the logic of the nation's highest court in interpreting its own analogous state law provision.

In Sutton, United Airlines refused to hire two women as global pilots because they wore glasses. The women brought suit, arguing that with corrective lenses, their eyesight did not hinder their ability to pilot a plane. The Supreme Court decided that precisely because their glasses corrected their vision, the plaintiffs were not "disabled" under the ADA and could therefore legally be refused employment on the basis of their need for glasses.

These cases about federal and state disability law raise the question of what anti-discrimination statutes ought to be about. If the idea is to prohibit arbitrary employment decisions based upon irrational prejudice, then the pilots in Sutton surely ought to have prevailed, as should Richard Dahill. Arbitrary prejudice alone, however, is not the target of most anti-discrimination laws; they target a particular irrational prejudice: the belief that a disabled person (or a member of some other protected class) is inherently unqualified for a given job.

"At will" employment — the norm for employees who do not work under a contract guaranteeing that they can only be fired for cause — provides that an employer may hire or fire an employee for any reason, however wrong or misguided, with one exception. Even if employment is "at will," an employer may not make hiring or firing decisions on a basis prohibited by state or federal anti-discrimination law. Disability represents one such prohibited basis.

An employer thus may fire an employee because she wears blue shoes, has a short boyfriend, or grew up in the suburbs — even though none of these facts would diminish her ability to perform the job. An employer may not, however, fire an employee because she is disabled.

In short, it is not the case that all irrational prejudice in employment decisions violates the law. Indeed, most do not. That is why there is some truth to the claims of various conservatives that if a group acquires legal protection against discrimination, it acquires a "special right" that other groups (such as people who are tall or people who play musical instruments) do not have. Such rights must be justified not just by unfairness — for all irrational prejudice is unfair — but by patterns of discrimination.

One difference between the blue-shoe-wearing employee and the disabled employee is that the latter is part of a class of people who — like racial minorities, women, and members of disfavored religious groups — suffer systematic harm at the hands of other people who wrongly assume that they cannot or should not do certain jobs. The disabled employee labors under two distinct burdens: the impairment itself and the prejudice of a society that marginalizes him.

Does a nearsighted pilot who can just put on a pair of glasses or contact lenses suffer these burdens? Perhaps not. There is arguably no systematic discrimination against people with glasses. And if that is true, if the pilot is fired, she can easily acquire a job from a more rational employer elsewhere. She suffers neither the burden of a disability (which is correctable) nor that of systematic prejudice.

Is a person who wears a hearing aid, who would otherwise be deaf, similarly free from systematic discrimination? More generally, are people who suffer from treatable conditions such as HIV, epilepsy, or mental illness, free from such discrimination? The answer is no, because of the continuing effects of stigma.

My mother's experience testifies to the power of stigma. She is hard of hearing, to a disabling degree. But it has taken her years even to consider wearing a hearing aid, and she has explained that this is in part because she did not want to think of herself as someone who wears a hearing aid. Rather than see herself that way, she preferred to struggle with every conversation and try to guess what people were saying. She was attempting to avoid a stigma — in this case, the stigma associated with wearing a hearing aid, with its connotations of aging and disability.

Such a stigma persists, as well, for those who struggle with HIV, epilepsy, and mental illness, notwithstanding the medications and therapy that make the struggle possible. The stigma is one of the reasons persons with such conditions want to keep them private. People who wear glasses or contact lenses do not generally suffer from a similar stigma — and thus may generally fall outside the class of "disabled" or "handicapped" individuals. However, in particular industries (flight, where 20-20 vision or better is especially prized and valued, may be one of them), stigma may still exist.

What about Richard Dahill? He may regularly encounter people who marginalize him and assume he is incompetent, because of his hearing aid or because of the hearing impairment that, by wearing the aid, he is forced to reveal publicly.

The Boston Police Department might have assumed that a person with a hearing aid could not do his job. That type of assumption plagues many others with disabilities, even those disabilities that are correctable — and often in part because the corrections call attention to the disabilities. It would be perverse, of course, to punish a person who has chosen to correct his disability by consequently declaring him fair game to being fired because of it.

Employers' often wrongheaded and unwarranted assumption of incompetence based on disability only becomes even more wrongheaded, and more utterly unwarranted, when that disability is corrected — yet prejudice remains. And the qualities of the prejudice against corrected and uncorrected disability are the same: it is not only irrational but it is also, and crucially, systematic.

Accordingly, firing someone with a hearing aid is much closer to firing a deaf person than to firing someone who happens to wear blue shoes. The blue-shoe-wearer is the victim of idiosyncratic prejudice alone.

For these reasons, Sutton was wrongly decided, and the Massachusetts high court should steer clear of following its lead in interpreting its own anti-discrimination law in Dahill.