Michigan Law Review, Vol. 99, No. 3 (December 2000), pp. 532-587


In 1999, the question of deference to the EEOC grabbed the spotlight. It surfaced in a case that arose under the Americans with Disabilities Act of 1990 (the "ADA"), a relatively new, and sweeping, anti-discrimination law that prohibits workplace discrimination against qualified individuals with a disability. A difficult substantive question was presented: Is the determination of whether one has a disability within the meaning of the ADA to be made with or without regard to mitigating measures? Instinctively, either a "yes" or a "no" answer seems problematic. On the one hand, defining disability without regard to the corrective effects of medication or other devices, such as eyeglasses or hearing aids, could so enlarge the class of legally protected people as to trivialize the very real concerns that prompted the enactment of the ADA. On the other hand, if a corrected impairment is not considered disabling, the statute is like to exclude a large number of people whose exclusions seems perverse. For example, an epileptic or diabetic whose condition is controlled through medication, or perhaps an amputee whose prosthetic limb enables her to walk or even run, may not be substantially limited in performing major life activities because of the mitigating effects of the medication or prosthesis. If the impairment is then not considered disabling, an employer would be free to fire or not to hire the individual because she was an epileptic, a diabetic, or an amputee. Whatever else Congress had in mind when it passed the ADA, protecting individuals from such status discrimination would seem to have been firmly within the scope of the statute's prohibitions.

After granting certiorari to hear Sutton v. United Air Lines, the Supreme Court, in an opinion by Justice O'Connor, affirmed the Tenth Circuit and held that an impairment must be assessed in its mitigated state.

As a matter of substantive law, the Sutton Court's narrow interpretation of the definition of disability is troubling, particularly in the context of workplace discrimination. The employment provisions of the ADA, located in Title I, protect only those disabled persons who can perform the essential functions of their jobs. Often it is the mitigating measure that enables an individual to do her work. Under Sutton, mitigating measures that would otherwise have brought the individual within the ADA's Title I protections against employment discrimination will no often keep her outside the scope of the ADA altogether.

The Sutton Court's refusal to defer to the EEOC, however, raises questions that transcend both the EEOC's credibility and the substantive law of employment discrimination. Taking apart the deference questions presented in Sutton and its companion cases allows exploration of the role that administrative agencies should play in developing solutions to some of this country's most intractable problems, while also highlighting various ambiguities in the Chevron doctrine itself. Part II discusses the various types of judicial deference to agency decisionmaking that a court might apply to administrative agencies. Part III examines the EEOC's statutory authority under Title VII, the ADEA, and the ADA, and the degree of deference that courts have historically accorded to EEOC interpretations of these statutes. Part IV examines the Court's holding in Sutton v. United Air Lines and reviews the options available to it for extending or withholding deference to the EEOC. Part V takes a step back from the case law and reflects on the appropriate roles of administrative agencies and courts in implementing civil rights in general and in setting policies for the disabled in particular. Part VI suggests how best to resolve the question of deference to the EEOC's regulations and Interpretive Guidance addressing Title I of the ADA, an issue the Court eventually will have to confront. Part VII concludes that jurisprudential and policy considerations strongly favor judicial deference to the EEOC's interpretations of the ADA.