SHOULD MITIGATING MEASURES BE CONSIDERED IN THE DISABILITY ANALYSIS UNDER THE ADA

To be considered disabled under the Americans with Disabilities Act (A DA) a plaintiff must show that he or she has a physical or mental impa irment and that the impairment substantially limits the performance of one or more major life activities. In addressing this issue of late, several courts have been charged with considering whether or not a pla intiff's use of ''mitigating measures, ''such as medication, prostheti c devices, or corrective lenses, should be taken into account in deter mining whether or not the condition qualifies as a ''disability'' unde r the ADA. While some courts have adopted the EEOC's interpretive guid elines in holding that such ''mitigating measures'' should not be take n into account, other courts have rejected the EEOC's position and hav e considered a plaintiff's use of ''mitigating measures'' in their dis ability analysis. This article examines the issues surrounding this sp lit of authority and offers the author's conclusions as to which posit ion presents the more persuasive argument.