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12.3 ADA—Corrected or Mitigated Disability

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The disability must be evaluated in its corrected or mitigated state. Even when corrected or mitigated, the disability must substantially limit a major life activity to qualify as a disability.

[Methods used to correct or mitigate disabilities are not limited to artificial aids, like medications and devices. A particular method or measure to treat or address a disability may not be sufficient, however, when the [[method] [measure] [treatment]] is so rigorous, difficult, or demanding that the major life activity is still substantially limited.]


This instruction arises from the trilogy of cases decided by the U.S. Supreme Court: Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (severe myopia corrected by corrective lenses was not a disability because plaintiff did not show substantial limitation on major life activity); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) (hypertension successfully treated with medication not a disability because no substantial limitation on major life activity); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (monocular vision subconsciously compensated for was not a disability because plaintiff showed no substantial limitation on major life activity).

In Fraser v. Goodale, 341 F.3d 1032, 1038–43 (9th Cir.2003), the court engaged in a lengthy analysis of whether the "mitigating measures" test articulated in Sutton would apply to an ADA claimant with diabetes affecting the major life activity of eating. The court, recognizing that "[n]ot all mitigating measures cure a person of an underlying impairment," concluded that the plaintiff should have been allowed to present to the jury the question of whether the availability of insulin and certain foods eliminated the substantial limitation upon eating imposed by her diabetes. The court indicated that the nature and extent of the diabetes regimen would bear heavily on that question. The last paragraph of the instruction is based on the language of Fraser.