Is a Corrected Disability Still a Disability?

We all know that the Americans with Disabilities Act (ADA) is intended to ensure "equal" treatment to people with disabilities. But suppose that a disability is completely corrected using some assistive device. Does the affected person still have a disability, and is he still protected by the ADA? Sherry F. Colb recently examined this question in her FindLaw column.

The Supreme Judicial Court (SJC) of Massachusetts is currently considering such a case (although it's based on Massachusetts law rather than the ADA). In Dahill v. Boston Police Department, Richard Dahill was denied employment as a police officer because of a hearing loss. He completed the 26-week Boston Police Academy training course, but was dismissed because of his hearing loss, even though he claims to have normal hearing with the use of a hearing aid (I question this claim, but let's assume it's true.)

Dahill sued the Boston Police Department in federal court under both state law and the ADA. The judge then requested the SJC to decide whether the state anti-discrimination law covers a person with a corrected disability. And this is the crux of the issue!

If Dahill did not use a hearing aid, he could probably be prevented from serving as a police officer on the grounds that he was not qualified - that hearing is a necessary qualification for the job. Does it seem reasonable that he could also be disqualified because he does use a hearing aid - that because his hearing is normal with a hearing aid, the refusal of the Department to hire him does not violate anti-discrimination laws?

This is the same logic that the US Supreme Court used in 1999 in Sutton v. United Airlines. In that case United refused to hire two people as pilots because they wore glasses. The Supreme Court ruled that, because the use of glasses corrected their vision, they were not protected by the ADA, and could therefore be refused employment because they needed glasses!

Following this introduction, Ms. Colb undertakes an examination of the intent of the anti-discrimination laws and concludes that the purpose of the law is not only to prevent specific discrimination against a particular disability (e.g., the inability to hear "normally"), but also to prevent systemic discrimination based upon perceptions of that disability (e.g., a person is somehow generally less capable because of the inability to hear "normally").

In the case of Mr. Dahill, if his aided hearing is normal, what is the basis of the Department's refusal to hire him? If the basis is the stigma associated with hearing loss and the tendency of some people to unjustly devalue a person because of his hearing loss, then Mr. Dahill is still "disabled", even though he wears a hearing aid. This "disability" is not based on the results of a hearing test (aided or unaided), but upon societal attitudes. This disability is not correctable with an assistive device, so the use of the device has no bearing on the person's handicapped or disabled status.

Based upon Ms. Colb's analysis, the Massachusetts SJC should decide in favor of Mr. Dahill. And the Sutton decision should be reexamined.