GGeeoorrggiiaa SSttaattee UUnniivveerrssiittyy LLaaww RReevviieeww Volume 25 Article 7 Issue 3 Spring 2009 4-1-2009 RRiigghhttss RReessuurrggeennccee:: TThhee IImmppaacctt ooff tthhee AADDAA AAmmeennddmmeennttss AAcctt oonn SScchhoooollss aanndd UUnniivveerrssiittiieess Wendy F. Hensel [email protected] Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Wendy F. Hensel, Rights Resurgence: The Impact of the ADA Amendments Act on Schools and Universities, 25 GA. ST. U. L. REV. (2009). Available at: https://readingroom.law.gsu.edu/gsulr/vol25/iss3/7 This Article is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. Hensel: Rights Resurgence: The Impact of the ADA Amendments Act on School RIGHTS RESURGENCE: THE IMPACT OF THE ADA AMENDMENTS ACT ON SCHOOLS AND UNIVERSITIES Wendy F. Hensel* Few people would have predicted that 2008 would be the year disability rights made a comeback in the United States. For years, courts had taken an increasingly restrictive approach to defining disability under the Americans with Disabilities Act,1 denying class membership to many who typically would be considered “disabled” within the common understanding of that term.2 Although attempts to amend the ADA had been made, none had yet gained sufficient political traction in the legislature.3 Many predicted more of the legal status quo, with few opportunities for plaintiffs to survive summary judgment.4 In this case, however, the conventional wisdom proved wrong. On September 25, 2008, President George W. Bush signed the unanimously enacted Americans with Disabilities Amendments Act (ADAAA)5 into law, “reinstating a broad scope of protection” to * Associate Professor of Law, Georgia State University College of Law. The author would like to thank Paul Lombardo, Mark Weber and Rob Garda for their very helpful comments on earlier drafts of this article. 1. 42 U.S.C. § 12102(2) (2006). 2. See, e.g., Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 1379986, at *2 (11th Cir. May 11, 2007) (mental retardation); Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724 (8th Cir. 2002) (diabetes); Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 184 (D.N.H. 2002) (cancer); Todd v. Academy Corp., 57 F. Supp. 2d 448, 452 (S.D. Tex. 1999) (epilepsy). 3. See, e.g., ADA Restoration Act of 2007, H.R. 3195, 110th Cong. § 4 (2007); Americans with Disabilities Act Restoration Act of 2006, H.R. 6258, 109th Cong. § 3 (2006). For a general discussion of the political climate in which these bills were introduced, see, for example, Jill C. Anderson, Just Semantics: The Lost Readings of the Americans with Disabilities Act, 117 YALE L.J. 992, 996–97 (2008); Samuel R. Bagenstos, The New Congress and the ADA, Disability Law Blog, http://disabilitylaw.blogspot.com/2006_11_01_archive.html (Nov. 29, 2006, 09:29 EST). 4. See, e.g., Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, 103 NW. U. L. REV. COLLOQUY 217, 229 (2008) (noting “the skepticism of some (myself included) that Congress would enact any meaningful changes to the ADA in the near term”). See also John W. Parry, 1999 Employment Decisions Under the ADA Title I- Survey Update, 24 MENTAL & PHYSICAL DISABILITY L. REP. 348, 348 (2000) (study finding that employers win 95.7% of ADA Title I cases at the federal appellate level). 5. ADA Amendments Act of 2008, Pub. L. No.110-325, 122 Stat. 3553. 641 Published by Reading Room, 2009 1 Georgia State University Law Review, Vol. 25, Iss. 3 [2009], Art. 7 642 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 25:3 people with disabilities.6 As a result of this largely unanticipated development, there is a renewed sense of hope and optimism among people with disabilities and their advocates that has long been absent.7 With change, however, comes uncertainty and concerns with legal compliance. The Amendments, which became effective on January 1, 2009,8 unquestionably will impact the field of education both with respect to employment and the eligibility and accommodation of K- 12 and university students with disabilities. Although it is difficult in the early days of legislation to predict the nuances that ultimately will materialize in the law, this Article provides an early look at the emerging legal issues for schools and universities occasioned by passage of the ADAAA. Part I provides a brief general overview of judicial interpretation of the disability definition prior to the enactment of the Amendments. Part II evaluates the revised law, exploring the specific provisions of the statute that have changed and the public impetus behind these changes. Finally, Part III explores the Amendments’ likely impact on schools and universities, highlighting issues that will require further discussion in the future. I. THE ORIGINAL ADA: JUDICIAL BACKLASH When Congress passed the original Americans with Disabilities Act in 1990, disability advocates hailed the legislation as a substantial step towards ending discrimination against the millions of Americans who will experience physical or mental impairments 6. See id. § 2(b)(1). 7. See, e.g., CHADD, President Signs ADA Amendments Act Into Law, http://www.chadd.org/AM/Template.cfm?Section=Press_Releases1&TEMPLATE=/CM/HTMLDisplay .cfm&CONTENTID=7522 (last visited Mar. 8, 2009) (calling the ADAAA’s passage “a huge victory” and “historic”); and Posting of Advocacy to NAD Advocacy Blog, http://blogs.nad.org/advocacy/2008/ 09/25/nad-celebrates-as-%E2%80%9Cada-amendments-act%E2%80%9D-becomes-law/ (Sept. 25, 2008). 8. ADA Amendments Act of 2008, Pub. L. No.110-325, § 8, 122 Stat. 3553. https://readingroom.law.gsu.edu/gsulr/vol25/iss3/7 2 Hensel: Rights Resurgence: The Impact of the ADA Amendments Act on School 2009] IMPACT OF ADA AMENDMENTS ACT 643 during their lifetime.9 Few anticipated that significant judicial resistance to the legislation would quickly curtail its effectiveness. Because disability is a social construct defined by law rather than an immutable characteristic,10 the legal definition of disability determines coverage under the statute. Changes in the definition or the interpretation of its foundational components can significantly expand or contract the class protected by law. The ADA defines disability as a physical or mental impairment that substantially limits a major life activity.11 Plaintiffs who can establish that they have an actual disability, a record of disability, or are regarded as having a disability all fall within the law’s anti-discrimination mandate.12 The following discussion briefly considers the judicial and regulatory treatment of these terms that set the stage for the Amendments. Although much of this discussion relates to the treatment of disability in an employment context, it is equally applicable to school and university obligations under Titles II and III because all sections of the ADA rely on the same statutory definition of disability.13 A. Questionable Regulatory Authority Congress gave authority to three federal agencies to promulgate regulations under the ADA: the Equal Employment Opportunity Commission (EEOC) (Title I); the Department of Justice (DOJ) 9. See, e.g., Susan Stefan, Delusions of Rights: Americans with Psychiatric Disabilities, Employment Discrimination and the Americans with Disabilities Act, 52 ALA. L. REV. 271, 271 (2000) (“When President Bush signed the Americans with Disabilities Act in the Rose Garden among hundreds of people with disabilities, the mood was one of tremendous hope and triumph.”). 10. See, e.g., Wendy F. Hensel, The Disability Dilemma: A Skeptical Bench & Bar, 69 U. PITT. L. REV. 637, 641–42 (2008) (explaining the social model of disability). 11. 42 U.S.C § 12102(2)(A) (2006). 12. 42 U.S.C § 12102(2)(A)–(C) (2006); 29 C.F.R. § 1630.2(g)(1)–(3) (2008). Individuals challenging the legality of medical inquiries and examinations under the ADA do not need to establish that they are disabled within the meaning of the law. 42 U.S.C § 12112(d) (2006). 13. 42 U.S.C. § 12102(2) (2006). It is worth noting, however, that some scholars have challenged the extent to which Title I cases and theory are applicable to Titles II and III. See, e.g., Michael Waterstone, The Untold Story of the Rest of the Americans with Disabilities Act, 58 VAND. L. REV. 1807, 1810 (2005) (finding that “Title II and III cases have had more pro-plaintiff results than Title I” cases and concluding “the Title I explanation and suggestions [by scholars] are to varying degrees incomplete or inaccurate when applied to the ADA’s non-employment Titles”). Published by Reading Room, 2009 3 Georgia State University Law Review, Vol. 25, Iss. 3 [2009], Art. 7 644 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 25:3 (Titles II & III); and the Department of Transportation (DOT) (transportation services under Titles II & III).14 Each of these agencies has issued regulations interpreting the definition of disability.15 Pursuant to the Administrative Procedure Act, these regulations would ordinarily be entitled to deference by courts, provided that the agencies followed the appropriate procedures in adopting them and the agency’s interpretation constituted a reasonable exercise of the delegated authority.16 The Supreme Court, however, called the EEOC’s authority to promulgate such regulations into question in Sutton v. United Airlines, Inc.,17 because the definition of disability is located in the General Provisions section of the ADA rather than in any of the subsequent Titles.18 Because Congress gave no agency the authority to promulgate regulations relating to the General Provisions, the Court voiced skepticism that the regulations were entitled to any deference by the courts.19 Despite its misgivings, the Supreme Court never definitely determined what weight to give to the regulations because the parties in Sutton did not dispute their legitimacy.20 In subsequent decisions, however, the Court defined “substantial limitation” and “major life activity” in ways that seemingly conflicted with EEOC regulations, establishing more exacting standards for plaintiffs.21 Although the impact of the Court’s skepticism has been limited to some extent by 14. 42 U.S.C. § 12116 (2006) (Title I – EEOC); 42 U.S.C. § 12134(a) (2006) (Title II – DOJ); 42 U.S.C. § 12149(a) (2006) (Title II – DOT); 42 U.S.C. § 12186(a)(1), (b) (2006) (Title III – DOT and DOJ, respectively). 15. See, e.g., 29 C.F.R. § 1630.2(g) (2008) (Title I – EEOC); 28 C.F.R. § 35.104 (2008) (Title II – DOJ); 28 C.F.R. § 36.104 (2008) (Title III – DOJ); 49 C.F.R. § 37.3 (2008) (Title II and III – DOT). 16. See 5 U.S.C. § 553 (2006) (describing formal rule making process under the Administrative Procedure Act). See also Lisa Eichhorn, The Chevron Two-Step and the Toyota Sidestep: Dancing Around the EEOC’s “Disability” Regulations Under the ADA, 39 WAKE FOREST L. REV. 177, 189–91 (2004) (explaining the deference attached to regulations). 17. Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999). 18. See 42 U.S.C. § 12102(2) (2006) (defining disability); Sutton, 527 U.S. at 478. 19. Sutton, 527 U.S. at 479. Notably, this position seemingly conflicts with that taken in Bragdon v. Abbot, 524 U.S. 624, 646 (1998), where the Court stated that Title III regulations issued by DOJ, implicitly including those relating to the disability definition, were entitled to deference. Id. 20. Sutton, 527 U.S. at 480. 21. See, e.g., Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198 (2002). See also infra Part I.C. (discussing interpretation of the substantial limitation requirement). https://readingroom.law.gsu.edu/gsulr/vol25/iss3/7 4 Hensel: Rights Resurgence: The Impact of the ADA Amendments Act on School 2009] IMPACT OF ADA AMENDMENTS ACT 645 lower courts’ continued deference to the regulations,22 the Sutton decision clearly created the potential for a restrictive definition of disability and broad judicial discretion unchecked by regulatory guidance. B. “Major Life Activity”23 The text of the ADA provides no insight into the meaning of major life activity. Accordingly, the parameters of this term have been flushed out exclusively by regulatory and judicial interpretation. The EEOC regulations on major life activity, consistent with those promulgated under the Rehabilitation Act,24 define major life activity by way of example, listing “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working” as activities that are “major.”25 This list was not intended to be exhaustive,26 and the Commission later added “[m]ental and emotional processes such as thinking, concentrating, and interacting with others” as “other examples of major life activities” in its Compliance Manual.27 Covered activities share the trait of being “basic activities that the average person in the general population can perform with little or no difficulty.” 28 22. See, e.g., Guzman-Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 9 (1st Cir. 2003) (“We have regularly consulted EEOC definition of the terms . . . but no agency has been granted authority to issue binding regulations.”); Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 762 n.7 (3d Cir. 2004) (stating, post-Sutton, that “‘we are guided by the Regulations issued by the Equal Employment Opportunity Commission (‘EEOC’) to implement Title I of the Act’”) (quoting Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n.4 (3d Cir. 1998)). 23. Although the definition of disability also requires plaintiffs to show an “impairment,” few cases have focused on this requirement. See, e.g., Lisa Eichhorn, Major Litigation Activities Regarding Major Life Activities: The Failure of the “Disability” Definition in the Americans with Disabilities Act of 1990, 77 N.C. L. REV. 1405, 1475 (1999) (“In the vast majority of ADA cases, the impairment issue rarely surfaces as a point of contention.”). 24. 34 C.F.R. § 104.3(j)(2)(ii) (2006). See also 29 C.F.R. § 1630.2(i) app. (2002) (noting that ADA regulations “adopt . . . the definition of the term ‘major life activities’ found in the regulations implementing section 504 of the Rehabilitation Act”). 25. 29 C.F.R. § 1630.2(i) (2008). 26. See Bragdon v. Abbot, 524 U.S. 624, 639 (1998) ( “As the use of the term ‘such as’ confirms, the list is illustrative, not exhaustive.”). 27. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC COMPLIANCE MANUAL § 902.3(b) (definition of the term “disability”). 28. 29 C.F.R. pt. 1630, app. § 1630.2(i) (2002). Published by Reading Room, 2009 5 Georgia State University Law Review, Vol. 25, Iss. 3 [2009], Art. 7 646 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 25:3 The Supreme Court clarified in Bragdon v. Abbott that “[t]he plain meaning of the word ‘major’ denotes comparative importance” and “suggest[s] that the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.”29 In reaching this conclusion, the majority rejected the dissent’s position that “major” was more appropriately defined “as ‘greater in quantity, number or extent’” because the activities listed by the EEOC all “are repetitively performed and essential in the day-to-day existence of a normally functioning individual.” 30 The dissent’s position gained traction in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,31 however, when the Court seemingly adopted a combination of the two definitions articulated in Bragdon. In Toyota, the majority concluded that major life activities encompass “those activities that are of central importance to daily life.”32 The Court also clarified that heightened requirements attach when alleging a substantial limitation in performing manual tasks, an activity identified in the regulations.33 The Court reasoned that if each restricted task identified by the plaintiff fails to independently qualify as major, then “together they must do so” in order to satisfy the statutory definition.34 The Court concluded that the definitional terms “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” or there would be significantly more Americans in the protected class than the 43,000,000 individuals with disabilities identified by Congress in the General Provisions of the ADA.35 Courts have taken heed of the Supreme Court’s admonition and looked critically at those activities that fall outside of the EEOC regulations. At various times, courts have rejected driving, sleeping, eliminating waste, concentrating, interacting with others, and 29. Bragdon, 524 U.S. at 638 (quoting Abbot v. Bragdon, 107 F.3d 934, 939, 940 (1st Cir. 1997)). 30. Id. at 660. 31. Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184 (2002). 32. Id. at 197. 33. Id. at 199–200. 34. Id. at 197. 35. Id. https://readingroom.law.gsu.edu/gsulr/vol25/iss3/7 6 Hensel: Rights Resurgence: The Impact of the ADA Amendments Act on School 2009] IMPACT OF ADA AMENDMENTS ACT 647 thinking as major life activities,36 despite the EEOC’s opinions to the contrary on many such activities.37 Courts have relied on a variety of rationales in rejecting these activities, including that they are insufficiently significant to society at large, too narrow, too infrequent, or voluntary and therefore not covered.38 Although Sutton counsels that the inquiry into an activity’s significance should be determined objectively from society’s perspective rather than from an individual’s point of view,39 there is some evidence suggesting that courts are more likely to identify an activity as major when alleged by plaintiffs with physical, rather than mental, impairments.40 36. See, e.g., Kellog v. Energy Safety Servs., Inc., 544 F.3d 1121, 1125–26 (10th Cir. 2008) (holding that “driving is not itself a major life activity”); Haynes v. Williams, 392 F.3d 478, 485 (D.C. Cir. 2004) (Williams, J., concurring) (questioning whether sleep is a major life activity); Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 385 (3d Cir. 2004) (discussing district court’s finding that eliminating waste was not a major life activity); Humbles v. Principi, No. 04-1218, 2005 WL 1581257, at *3 (10th Cir. July 7, 2005) (finding that “interactions with others and concentration have not been deemed major life activities by this circuit”); Boerst v. Gen. Mills Operations, Inc., No. 00-3281, 2002 WL 59637, at *3 (6th Cir. Jan. 15, 2002) (thinking). For a general discussion of earlier cases interpreting the major life activity requirement, see Curtis D. Edmonds, Snakes and Ladders: Expanding the Definition of “Major Life Activity” in the Americans with Disabilities Act, 33 TEX. TECH L. REV. 321, 325 (2002). 37. See, e.g., 29 C.F.R. pt. 1630, app. § 1630.2(i) (2002); EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, supra note 27, at 902.3(b); The U.S. Equal Employment Opportunity Commission, EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities [hereinafter Enforcement Guidance], http://www.eeoc.gov/policy/docs/psych.html (last visited Mar. 11, 2009). Because these sources of guidance were not promulgated pursuant to the Administrative Procedure Act, they are not entitled to deference by courts. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Many courts, however, have continued to find such sources to be persuasive. See, e.g., Watson v. City of Miami Beach, 177 F.3d 932, 936 (11th Cir. 1999) (finding the Enforcement Guidance “helpful”); McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999) (citing the Enforcement Guidance with approval). 38. See, e.g., Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 642–43 (2d Cir. 1998) (emphasizing the gate-keeping function of the “major life activity” requirement in rejecting standing, sitting, lifting objects, working and sleeping as major life activities, reasoning that otherwise plaintiffs could minimize their burden of establishing a substantial limitation merely by “defin[ing] the major life activity as narrowly as possible, with an eye toward conforming the definition to the particular facts of his own case”); Brown v. BKW Drywall Supply, Inc., 305 F. Supp. 2d. 814, 826–27 (S.D. Ohio E. Div. 2004) (holding intermittent, episodic conditions are generally not considered disabilities under the ADA unless they occur with sufficient frequency); Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102, 106–07 (S.D. Iowa 1995) (rejecting reproduction as a major life activity pre-Bragdon because although all people walk, see, hear, speak and breathe unless prevented by illness, “[s]ome people choose not to have children”). 39. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). 40. See Wendy F. Hensel, Interacting With Others: A Major Life Activity Under the ADA?, 2002 WIS. L. REV. 1139, 1142 (2002) (concluding that courts are more likely to find interacting with others a major life activity in the context of physical impairments). Published by Reading Room, 2009 7 Georgia State University Law Review, Vol. 25, Iss. 3 [2009], Art. 7 648 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 25:3 C. Substantial Limitation Of all the elements of the disability definition, the substantial limitation requirement has been the subject of the most controversy. Congress offered no explanation of “substantially limited” in the text of the ADA. EEOC regulations define the term to mean an inability “to perform a major life activity that the average person in the general population can perform; or [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.”41 In evaluating the degree of limitation present, consideration is given to the following factors: “(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.”42 The Supreme Court initially adopted a relatively broad definition of substantial limitation in Bragdon v. Abbot. The Court explained that plaintiffs do not need to establish that they are absolutely precluded from performing a major life activity to show a substantial limitation, reasoning that “[t]he Act addresses substantial limitations on major life activities, not utter inabilities.”43 Instead, the Court concluded that when “significant limitations” are present, “the definition is met even if the difficulties are not insurmountable.”44 Nevertheless, the Court’s interpretation has progressively become more restrictive since Bragdon. Its scrutiny reached a high water mark in Toyota, where the Court cited Webster’s Dictionary rather than EEOC regulations in concluding that restrictions must be “‘considerable’ or ‘to a large degree’” in order to satisfy the statutory 41. 29 C.F.R. § 1630.2(j)(1) (2002). 42. 29 C.F.R. § 1630.2(j)(2) (2002). 43. Bragdon v. Abbot, 524 U.S. 624, 641 (1998). 44. Id. https://readingroom.law.gsu.edu/gsulr/vol25/iss3/7 8 Hensel: Rights Resurgence: The Impact of the ADA Amendments Act on School 2009] IMPACT OF ADA AMENDMENTS ACT 649 definition.45 The Court made clear that plaintiffs will not secure class coverage based on impairments “that interfere in only a minor way” with an identified activity, and instead must demonstrate a “severe restriction[.]”46 The Court offered no explanation for its departure from the “significant restriction” language found in EEOC regulations, which some have argued is a more lenient threshold.47 Although the “severe restriction” standard has created challenges for plaintiffs, it is the Court’s interpretation of substantial limitation in Sutton v. U.S. Airways, Inc. that has most impacted class membership. In Sutton, the Court considered the role that medication and other corrective devices play in evaluating whether an impairment is sufficiently limiting to be a protected disability.48 The EEOC’s Interpretive Guidance had directed courts to consider plaintiffs’ limitations without regard to any alleviating measures employed by them.49 This position was consistent with all other agencies interpreting the disability definition, as well as the legislative history of the ADA.50 Every Circuit Court of Appeal to consider the issue prior to the Tenth Circuit in the underlying case had adopted the EEOC’s position.51 Nevertheless, the Supreme Court concluded that the plain language of the statute requires courts to consider all mitigating measures taken by plaintiffs, including medication, assistive technology, and internal coping mechanisms, in determining whether the substantial limitation requirement is satisfied.52 45. Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197 (2002) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2280 (1976)). 46. Id. See also Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999) (holding that “a mere difference” in the way the activity is performed will not establish a substantial limitation); Benko v. Portage Area Sch. Dist., 241 F.3d Appx. 842, 846 (3d Cir. 1997) (finding plaintiff not disabled because he did not demonstrate a ‘severe restriction” arising out of degenerative disk disease). 47. See Eichhorn, supra note 16, at 202–03 (discussing court decisions interpreting the “severe restriction” standard to be a higher threshold for plaintiffs). 48. Sutton v. United Air Lines, Inc., 527 U.S. 471, 481 (1999). 49. 29 CFR pt. 1630, app. § 1630.2(j) (1998). 50. Sutton, 527 U.S. at 496, 499–501 (Stephens, J., dissenting). 51. Id. at 495–96. 52. Id. at 487. Published by Reading Room, 2009 9