By Sarah Lawsky

Dena has a severe mental illness that is controlled by medication. Apart from a two-month hospitalization directly after the onset of her illness, she has always held a job and lived independently. When she goes to rent an new apartment a few years after her hospitalization, the landlord asks about the two-month gap on her rental history, and she tells him that she was in the hospital for a mental illness that is now completely controlled by medication. He responds, "I'm sorry, I'm not going to offer you this apartment, even though I'm sure you can pay the rent and live on your own, because people with mental illness make me uncomfortable."(1)

Until recently, this would have been a clear violation of the Fair Housing Amendments Act, a sure win for Dena and her advocate should they choose to pursue the case in court. But a disturbing new Supreme Court ruling suggests that, if Dena's advocate is not careful, a court might find that Dena is not protected by the FHAA and that the landlord's actions are perfectly legal.

In Sutton v. United Airlines,(2) the Supreme Court held that for the purposes of the Americans with Disabilities Act, whether a person has a disability is to be determined based on the person's condition when that person uses corrective measures. In Sutton, two women were denied positions as airline pilots because they each had extremely poor vision when they weren't wearing glasses. The Supreme Court held that, because the women had perfect vision when wearing glasses, the women were not disabled and thus not protected by the ADA. The Court stated that "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures - both positive and negative - must be taken into account when judging whether that person is 'substantially limited' in a major life activity and thus 'disabled' under the [ADA]." That is, to determine whether someone is disabled, ask whether her physical or mental impairment, when mitigated by medication or other corrective devices, substantially limits her ability to perform major life activities.

Because the ADA's definition of "disability" and the FHAA's definition of "handicap" are essentially identical,(3) the decision in Sutton may affect the way courts deal with fair housing cases. To understand why this is true, we must first take a closer look at the definition of disability under the FHAA. To be covered by the FHAA provisions prohibiting discrimination against people with disabilities, a person must have a disability or be associated with a person who has a disability. The FHAA provides three different ways that a person can be considered to have a disability and thus be covered by the FHAA. First, a person has a disability for the purposes of the FHAA if the person has a physical or mental impairment that substantially limits one or more of the person's major life activities.(4) Examples of major life activities include walking, seeing, hearing, working, and caring for oneself.(5) Second, a person has a disability under the FHAA if the person has a record of having an impairment that substantially limits his major life activities.(6) This means that a person has a history of, or has been misclassified as, having a disability.(7)

Finally, a person is covered by the FHAA if he does not actually suffer from a disability, but is regarded as having an impairment that substantially limits his life activities.(8) For example, if a landlord believes that a prospective tenant is, say, HIV-positive, when in fact that person is not HIV-positive, the tenant might be protected under FHAA.(9) Similarly, if a landlord erroneously believes that a tenant with major depression isn't able to take care of himself, when in fact the tenant is perfectly capable of living independently, the tenant is protected by the FHAA, even if he is not actually substantially limited in any major life activity.

Given this definition, as a practical matter, in some cases Sutton will have no effect at all. For example, Sutton should have no effect on cases dealing with group homes, since people who live in group homes are, almost by definition, people who have an impairment in a major life activity, since they are not able to live independently. ("Taking care of one's self" is considered a major life activity.) However, in cases dealing with nothing more than irrational prejudice, Sutton could deny protection to the very people the Fair Housing Amendments Act was intended to protect. To see why this is so, let's return to Dena and take a closer look at why, after Sutton, a court might decide that Dena is not protected by the FHAA.

Under Sutton, Dena might qualify for protection under none of the three prongs of the FHAA's definition of disability. First, even though Dena has a chronic condition for which she will have to take medication for the rest of her life, she is apparently not currently disabled, because when Dena is taking medication - i.e., when her condition is mitigated - she can work, care for herself, and so forth. Second, she does not have a record of having a disability, because her hospitalization was relatively brief and she has otherwise been able to work and live independently.(10) This is counterintuitive; after all, the very purpose of legislation such as the FHAA, the ADA, and the Rehabilitation Act is to provide protection to people with chronic conditions. But because Dena's condition must be evaluated in its mitigated state, any distinction between chronic but controlled conditions and conditions that are merely temporary is obliterated. Finally, Dena is not protected by the third prong of the definition of handicap. The landlord is not wrong to believe that she has a mental illness, and he does not regard her as having a disability that limits major life activities, because he believes that she can pay the rent and live on her own; he is just made uncomfortable by people with mental illness.(11)

There may be still be hope for showing that Dena is protected by the FHAA. One possible route is suggested by the Court's statement that the negative, as well as the positive, effects of the mitigating measures must be taken into account when determining whether a person is limited in a major life activity, in combination with the Court's recent holding that the list of major life activities contained in the relevant regulations is "illustrative, not exhaustive."(12) Dena might benefit from creative thinking about, for example, side effects of medication and what constitutes a major life activity.(13)

For example, many medications that allow a person to live a full and independent life also have unfortunate side effects. Sexual dysfunction of one kind or another is a relatively common side effect of certain antidepressant medications.(14) Other psychiatric medications increase the risk of severe birth defects; it is generally suggested that women taking such medications not become pregnant.(15) The Supreme Court has acknowledged that "reproduction and the sexual dynamics surrounding it are central to the life process itself" and constitute a "major life activity" for the purposes of the ADA.(16) A person who experiences a side effect of medication that interferes with reproduction or "sexual dynamics" might therefore be considered disabled.

Of course, not every person taking medication experiences side effects, and not all the side effects a person experiences impair a major life activity. The Supreme Court's ruling may still have an adverse impact on people seeking protection under the FHAA. In a different, more generous world, the only limitations a person with a disability would face would be the physical or mental limitations the disability itself imposed. Any discrimination the person faced would be based on no more than misunderstanding - the landlord thought I had AIDS, but I really don't; the landlord thought depression meant I couldn't live independently, but I really can. But that is not yet our world. In this world, there is still a stigma attached to some conditions and diagnoses, a stigma unrelated to what a person can or can't do. The Court in Sutton failed to recognize this stigma, and thus Sutton, in a sad twist, permits the continued existence of some kinds of baseless, irrational prejudice.

NOTES

1. Cf. H.R. Rep. No. 100-711, at 18 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179 (stating that the FHAA is designed to address the discrimination that people with disabilities have faced "because they make non-handicapped people uncomfortable").

2. 119 S. Ct. 2139, 1999 WL 407488 (June 22, 1999). 

3. Compare 42 U.S.C. § 12101(2) (ADA) with id. § 3602(h) (FHAA). (The FHAA uses the term "handicap." In this article, I will use the terms "handicap" and "disability" interchangeably. The EEOC regulations enforcing the ADA and the HUD regulations enforcing the FHAA are also nearly identical when it comes to defining terms such as "major life activity," "record of impairment," and "regarded as having an impairment." Compare 29 C.F.R. § 1630.2 (ADA) with 24 C.F.R. § 100.201 (FHAA).

4. See 42 U.S.C. § 3602(h)(1).

5. See 24 C.F.R. § 100.201(b).

6. See 42 U.S.C. § 3602(h)(2).

7. See 24 C.F.R. § 100.201(c).

8. See 42 U.S.C. § 3602(h)(3).

9. See Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998) (declining to reach the question of whether asymptomatic HIV-infection is a per se disability under the ADA, but holding that in the case in question, HIV-infection was a disability because it impaired the major life activity of reproduction).

10. Cf., e.g., Colwell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2d Cir. 1998) (seven-month inability to work, including 30 days of hospitalization, does not constitute record of disability under the ADA); Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) (three-and-a-half month impairment does not constitute record of disability under the ADA).

11. Dena might argue that if all landlords felt the same way as this landlord, her condition would in fact prevent her from living independently, since she wouldn't be able to find an apartment to rent. But the Supreme Court would reject this argument. As the Court stated in Sutton, "[i]t is not enough to say that if all the physical criteria of a single employer were imputed to all similar employers would be regarded as substantially limited in the major life activity of working only as a result of this imputation." It would not be enough to show that if the irrational attitude were adopted by a large number of landlords, Dena would not be able to find housing. Instead, Dena must show that the landlord's action shows a belief that her mental illness substantially limits her.

12. Bragdon, 118 S. Ct. at 2205.

13. This creative thinking need not be limited to the ways in which Dena is impaired in her ability to live independently or pay rent. The Supreme Court has held that there need be no link between the major life activity in which a person is impaired and the type of discrimination she faces in order for her to qualify as disabled. In Bragdon, the Court found that an HIV-positive woman whom a dentist refused to treat was disabled and entitled to protection under the ADA even though the major life activity in which she was impaired, the activity of reproduction, bore no relationship to the discrimination she faced.

14. See, e.g., Physician's Desk Reference 2053 (1997) (stating that 15.5% of men taking Zoloft, a common antidepressant, in a clinical trial suffered from some type sexual dysfunction, as opposed to only 2.2% of the men taking a placebo); id. at 2684 (stating that 23% of men taking Paxil for depression and 31% of men taking Paxil for obsessive-compulsive disorder or panic disorder suffered some type of sexual dysfunction, as opposed to 0% and 2% in the placebo group, respectively).

15. See, e.g., id. at 420 (discussing the possibility that Depakote, used to treat manic-depressive illness, causes birth defects).

16. Bragdon, 118 S. Ct. at 2205. The Supreme Court in that case noted that HIV interfered with a person's ability to reproduce even though it did not make reproduction impossible and did not even guarantee that a person's child would be born HIV-positive. "It cannot be said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one's child does not represent a substantial limitation on reproduction."118 S. Ct. at 2206.

The Author: Sarah Lawsky is a summer intern at the Bazelon Center for Mental Health Law. This fall she will be a second-year student at Yale Law School. She can be contacted at sarah.lawsky@yale.edu.