MCS Disorder and [Prev Hit][Next Hit]Environmental Illness as Handicaps

Directive Number: GME-0009

HUD Clips from http://www.hudclips.org/sub_nonhud/cgi/nph-brs.cgi?d=LOPS&s1=Environmental+Illness&op1=AND&l=100&SECT1=TXT_HITS&SECT5=LOPS&u=./hudclips.cgi&p=1&r=1&f=G

Index:  9.207

Subject:  MCS Disorder and [Prev Hit][Next Hit]Environmental Illness as Handicaps

                     March 5, 1992

MEMORANDUM FOR:  Frank Keating, General Counsel, G

FROM:  Carole W. Wilson, Associate General Counsel for

    Equal Opportunity and Administrative Law, GM

SUBJECT:  Multiple Chemical Sensitivity Disorder and

     [Prev Hit][Next Hit]Environmental Illness as Handicaps

This memorandum analyzes whether Multiple Chemical

Sensitivity Disorder ("MCS") and [Prev Hit][Next Hit]Environmental Illness ("EI") are

or can be "handicaps" within the meaning of subsection 802(h) of

the Fair Housing Act (the "Act"), 42 U.S.C. ,, 3602(h), and the

Department's implementing regulation, 24 C.F.R. ,, 100.201 (1991).

In sum, we conclude that MCS and EI can constitute handicaps

under the Act.  Our conclusion is consistent with the weight of

both federal and state judicial authority construing the Act and

comparable legislation, the Act's legislative history, as well as

the interpretation of other Federal agencies, such as the Social

Security Administration and the Department of Education,

construing legislation within their respective domains.  The

Civil Rights Division of the Department of Justice has also

informed us that it believes MCS and EI can be handicaps under

the Act.  In addition, HUD has consistently articulated this

position, and FHEO agrees with our conclusion.

I.   Ordinary Allergies, Unlike MCS and EI, Generally Are Not

Handicaps

Before turning to whether MCS and EI can fit within the

definition of "handicap" under the Act, it is useful to define

MCS and EI and distinguish these conditions from ordinary

allergies.  This memorandum uses the term MCS to refer to a

condition that causes a person to have severe hypersensitive

reactions to a number of different common substances.  This

memorandum uses the term EI to refer more generally to a

condition that causes a person to have any type of severe

allergic reaction to one or more substances.

At least one court has accepted the following definition for

MCS:

 An acquired disorder characterized by recurrent

symptoms, referable to multiple organ systems,

occurring in response to demonstrable exposure to many

chemically unrelated compounds at doses far below those

established in the general population to cause harmful

effects.  No single widely accepted test of physiologic

function can be shown to correlate with symptoms.

Ruether v. State, 455 N.W.2d 475, 476 n.1 (....Minn..... 1990) (quoting

Cullen, The Worker with Multiple Chemical Sensitivities:  An

Overview, 2 Occupational Medicine:  State of the Art Reviews 655,

657 (1987)).

Ordinary allergies, as opposed to MCS and EI, generally

would not constitute a "handicap" because, in most cases,

ordinary allergies do not substantially limit a major life

activity.  Indeed, the ....National.. ..Academy.... of Sciences ("NAS")

defines MCS to exclude reactions to more common types of

allergens.  Thus, while we conclude that MCS or EI can be

handicaps under the Act, ordinary allergies generally would not

be such.

The practical difference between a person with MCS and one

with ordinary allergies is described in a decision which held

that MCS is a "disability" under the Social Security Act:

Everyone knows someone with an allergy.  If allergic to

eggs, don't eat eggs and you will be fine.  If you do

eat an egg, have some Kleenex available.  But  the

plaintiff with MCS  represents the extreme.  These

extreme cases in the past were either ignored, sent to

a psychiatrist, let die, or treated for other ailments.

It has only been recently that the medical profession

itself has recognized the degree of the problem and the

numbers of persons involved....

... A severe exposure  of the plaintiff to the elements

to which she reacts  causes us to reach not for a

Kleenex box but for the telephone to summon an

ambulance and this has happened in the past.

Slocum v. Califano, No. 77-0298, slip op. (D. Haw. Aug. 27,

1979).

Ordinary allergies are like a host of other common

characteristics, which, although they may pose challenges to

individuals with the characteristic, do not constitute handicaps

because they either are not impairments or do not substantially

impair major life activities.  Judicial or other authority have

found that the following characteristics do not constitute

handicaps:

-    left-handedness is not an impairment under Sections 501

     and 504 of the Rehabilitation Act of 1973

     ("Rehabilitation Act"), 29 U.S.C. ,,,, 791 and 794,

     because it is physical characteristic, not a impairment

     - Torres v. Bolger, 781 F.2d 1134, 1138 (5th Cir.

     1986), aff'g, 610 F. Supp. 593 (N.D. Tex. 1985) (ruling

     that left-handedness is not an impairment and does not

     substantially impair major life activities);

-    shortness is not a disability or impairment under

     ..Wisconsin.. employment discrimination law - American

     Motors Corp. v. Labor and Industry Review Commission, 8

     F.E.P. Manual 421:661 (No. 82-389)  cited in Torres v.

     Bolger, 610 F. Supp. 593, 596 (N.D. ....Tex..... 1985) ;

-    "For purposes of the definition of 'disability' in

     section 3(2), homosexuality and bisexuality are not

     impairments and as such are not disabilities under this

     Act." - Section 511 of the Americans with Disabilities

     Act ("....ADA...."), 42 U.S.C. ,, 12211.

II.  MCS and EI Generally Meet the Statutory and Regulatory

Definition of Handicaps

Subsection 802(h) of the Act defines "handicap" as follows:

(h)  "Handicap" means, with respect to a person --

     (1)  a physical or mental impairment which

substantially limits one or more of such person's major life

activities,

     (2)  a record of having such an impairment, or

     (3)  being regarded as having such an impairment, but

such term does not include current, illegal use of or

addiction to a controlled substance (as defined in section

102 of the Controlled Substances Act (21 U.S.C. 802)).

As under the Rehabilitation Act's definition of handicap, 29

U.S.C. ,, 706(6), a definition substantially similar to that in

the Act, the determination of whether any particular condition

constitutes a "handicap" necessarily involves a case by case

determination of all facts and circumstances relevant to whether

the condition meets the Act's definition.  Forrisi v. Bowen, 794

F.2d 931, 933 (4th Cir. 1986) (case brought under the

Rehabilitation Act); E.E. Black, Ltd. v. ....Marshall...., 497 F. Supp.

1088, 1100 (D. Haw. 1980) (same).  Those with MCS or EI generally

attempt to meet the definition by virtue of paragraph (1) of the

Act's definition, i.e., by maintaining that their condition

constitutes a physical impairment which substantially limits one

or more of their major life activities.  As shown below, our

understanding of the usual effects of MCS and EI is that persons

with these conditions generally meet the Act's definition of

persons with a "handicap."

A.   Physical or Mental Impairment

The Act does not define its term, "physical or mental

impairment," but the Department's regulations define that term as

follows:

"Physical or mental impairment" includes:

     (1)  Any physiological disorder or condition,

cosmetic disfigurement, or anatomical loss affecting

one or more of the following body systems:

Neurological; musculoskeletal; special sense organs;

respiratory, including speech organs; cardiovascular;

reproductive; digestive; genito-urinary; hemic and

lymphatic; skin; and endocrine; or

     (2)  Any mental or psychological disorder, such as

... emotional or mental [Prev Hit][Next Hit]illness ....  The term

"physical or mental impairment" includes, but is not

limited to, diseases and conditions as ... visual,

speech and hearing impairments, ...  and  emotional

[Prev Hit][Next Hit]illness ....

24 C.F.R. ,, 100.201.

As discussed at more length, infra, at Parts III, V, and VI,

courts and administrative agencies (including HUD) have found

persons with MCS and EI to have a physiological disorder or

condition, which, upon exposure to certain substances, causes the

person to suffer substantial impairment of various body systems.

Listed below are some of the systems that we understand can be

affected, as well as some of the ways each can be affected:

1.   neurological - blurred vision and black spots, ear

     ringing, incoherent speech, and seizures;

2.   musculoskeletal - muscle aches, fatigue, muscle spasms;

3.   special sense organs - blurred vision, ear ringing;

4.   respiratory (including speech organs) - incoherent

     speech, shortness of breath;

5.   hemic - unusually high T-cell count;

6.   digestive - pancreas damage;

7.   immunological - extreme sensitivity to various

     chemicals which can be life threatening.

B.   Major Life Activities

The Act does not define the term "major life activities,"

but HUD regulations define it as follows:

     "Major life activities" means functions such as

caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning

and working.

24 C.F.R. ,, 100.201.

People with MCS and EI can have one or more major life

activities affected by their condition.  We understand these to

include, but not be limited to:

1.   working - such persons may be disabled under the Social

     Security Act, 42 U.S.C. ,, 416(i)(1);

2.   speaking - incoherent speech when exposed to chemicals;

3.   breathing - extreme shortness of breath when exposed to

     chemicals;

4.   caring for themselves; performing manual tasks - may be

     substantially impaired by chronic fatigue and the need

     to avoid exposure, they are often bed-ridden;

5.   walking - loss of muscle control;

6.   seeing - blurred vision and black spots;

7.   hearing - ear ringing.

8.   learning - blurred vision, ear ringing, seizures, and

     chronic fatigue, all of which may substantially impair

     a person's ability to learn.

C.   Substantially Limited

Neither the Act itself nor HUD's implementing regulations

define what it means to be "substantially limited" in a major

life activity.  Case law, however, provides some guidance.

The Fourth Circuit in Forrisi v. Bowen, 794 F.2d 931 (4th

Cir. 1986), ruled that, under the Rehabilitation Act, in order

for an impairment to substantially limit a major life activity,

"the impairment must be a significant one."  ....Id..... at 933-34.

E.E. Black, Ltd. v. ....Marshall...., 497 F. Supp. 1088 (D. Haw.

1980) ("Black"), ruled that a person who is disqualified from

employment in his chosen field has a substantial handicap in

employment and is substantially limited in his major life

activity of working.  ....Id..... at 1099.  In contrast, where a person

is disqualified only from certain subfields of work, the

determination of whether the impairment is substantial must be

viewed in light of certain factors.  ....Id..... at 1101-02.  These

factors are:

1.   the number of types of jobs from which the impaired

     individual is disqualified;

2.   the geographical area to which the individual has

     reasonable access to find alternative employment; and

3.   the individual's own job expectations and training.

....Id.....

The Sixth Circuit in Jasany v. ....United States.... Postal Service,

755 F.2d 1244 (6th Cir. 1985), in discussing the "substantially

limiting" requirement, stated that " a n impairment that affects

only a narrow range of jobs can be regarded either as not

reaching a major life activity or as not substantially limiting

one."  ....Id..... at 1249 note 3.

Federal agencies appear to have adopted a similar approach

to the "substantially limited" requirement, as have state

courts.

Persons with MCS and EI may be substantially limited in

major life activities due to their handicap.  For such persons,

exposure to a variety of common substances may cause them

significant limitations to their major life activities, such as

those listed, supra, at Part IIB.  Moreover, due to the frequency

that ordinary living normally brings people into contact with the

commonly found substances to which persons with MCS and EI

typically react, persons with these disabilities may be severely

constrained in their daily living and must make major adjustments

to avoid exposure.  Since it is critical that people with MCS and

EI minimize their exposure to common substances found in or near

most housing facilities, they generally face a significantly

limited choice of housing.

III. Case Precedent Recognizes MCS and EI as Handicaps

The weight of judicial precedent supports the conclusion

that MCS and EI can be handicaps.

A.   Federal Case Law Recognizes MCS and EI as Handicaps

Vickers v. Veterans Administration, 549 F. Supp. 85, 86-87

(W.D. Wash. 1982), held that a Veterans Administration ("VA")

employee who was hypersensitive to tobacco smoke was handicapped

under the Rehabilitation Act.  The court ruled that the ability

to work where one will be subject to an ordinary amount of smoke

is a major life activity.  ....Id..... at 87.  The court specifically

found that the plaintiff had a physical impairment that

substantially limited his ability to work in an environment that

was not completely smoke free, and thus, he was handicapped.

Rosiak v. Department of the Army, 679 F. Supp. 444 (M.D. Pa.

1987), aff'd, 845 F.2d 1014 (3d Cir. 1988), held that a carpentry

worker who was hypersensitive to "hydrocarbon-type fumes or

dust," including those from contact cement, was handicapped under

the Rehabilitation Act due to his hypersensitivity.

Kouril v. Bowen, 912 F.2d 971, 974 (8th Cir. 1990), held

that a woman with MCS was disabled under the Social Security Act,

42 U.S.C. ,, 416(i)(1).  She suffered numbness in the legs,

dizziness, light headedness, headaches, nausea, and various skin

rashes and sores when exposed to common chemicals, such as ink,

perfume, tobacco smoke, photocopier odors, engine exhaust fumes,

new carpet, new clothes, and hydrocarbons.  The court found her

"complex allergy state" to require substantial restrictions in

her daily activities and interfere with her ability to engage in

substantial gainful activity.  912 F.2d at 976.

Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980),

involved a truck driver, diagnosed as having severe allergies to

[Prev Hit][Next Hit]environmental pollutants and bronchial asthma, and, who, as a

consequence, suffered disabling respiratory attacks.  The court

ruled that he was disabled from substantial gainful activity

under the Social Security Act, and, thus, his widow was entitled

to collect his Social Security disability benefits.

On the other hand, Lawson v. Sullivan, 1990 U.S. Dist. LEXIS

18758 (N.D. Ill. 1990) (magistrate's decision), adopted, 1991

U.S. Dist. LEXIS 1560 (N.D. Ill. 1991), affirmed a decision of

the Secretary of Health and Human Services, which denied the

claimant Social Security disability benefits based on a failure

to produce adequate, objective, clinical evidence supporting her

complaints of incapacitating migraine headaches, allegedly

brought about by exposure to various common chemicals.

B.   State Case Law Recognizes MCS and EI as Handicaps

..Pennsylvania.., ..California.., and ....Ohio.... state courts have

interpreted their state civil rights statutes prohibiting

discrimination against the handicapped to apply to persons with

MCS and EI.  We have been unable to find any state court holding

to the contrary.

Most noteworthy, because it involves housing discrimination,

is a case interpreting the Pennsylvania Human Relations Act

("....Pennsylvania.... Act"). Lincoln Realty Management Co. v.

..Pennsylvania.. Human Relations Commission, 598 A.2d 594 (....Pa..... Commw.

1991) ("....Lincoln....").  In that case, a ....Pennsylvania.... trial court

affirmed, in part, the decision of the Pennsylvania Human

Relations Commission.  The court affirmed, without analysis of

this issue, the finding that the plaintiff, a tenant unable to

tolerate the presence of various chemical compounds (including

certain pesticides and herbicides), was handicapped under the

....Pennsylvania.... Act.  ....Id..... at 597, 601.

The California Court of Appeals held in ....County.. of ..Fresno.... v.

Fair Employment and Housing Commission of the State of

..California.., 226 ..Cal... App. 3d 1541, 1550, 277 ....Cal..... Rptr. 557, 563

(Cal. App. 5th Dist. 1991), that the state human relations

commission did not abuse its discretion in determining that

hypersensitivity to tobacco smoke, was a handicap under the

..California.. Fair Employment and Housing Act ("....California.... Act").

While this case involved employment discrimination, the

California Act's definition of handicap applies equally to

housing.  Thus, the holding that hypersensitivity to tobacco

smoke qualifies as a handicap would apply in housing

discrimination cases also.

In Kallas Enterprises v. ....Ohio.... Civil Rights Commission, 1990

....Ohio.... App. LEXIS 1683 (Ohio Ct. App. May 2, 1990), the Court of

Appeals of ....Ohio...., citing Vickers, discussed, supra, at 10-11,

ruled that "occupational asthma" and "a hypersensitivity to

 rustproofing  chemicals," are handicaps within the meaning of

the ..Ohio.. Civil Rights Act ("....Ohio.... Act"), Ohio Rev. Code ,, 4112 et

seq.  The court affirmed the trial court's ruling that the

plaintiff was illegally discharged because of his handicap and

affirmed the trial court's reinstatement order.

In ..Kent.. ..State.. ..University.. v. ....Ohio.... Civil Rights Commission, 64

Ohio App. 3d 427, 581 N.E.2d 1135 (1989), a different district of

the Court Appeals of Ohio held in favor of a person with

laryngeal stridor with laryngospasm, diagnosed as a condition

making her unable to breath when subjected to pesticides,

cleaning solutions, natural gas, asphalt, auto exhaust, cigarette

smoke, hair spray, cosmetics, rubber products, petrochemicals,

and other common substances.  581 N.E.2d at 1137.  The court

found that her condition was a handicap under the Ohio Act.

IV.  Legislative History Supports the Conclusion that MCS and EI

Can Be Handicaps

The Act's legislative history also demonstrates that

Congress intended that the Act's definition of handicap be broad

enough to include MCS and EI.  Congress intended that the term

"handicap," as used in the Act, be interpreted consistently with

judicial interpretations of the term "handicap," as used in the

Rehabilitation Act.  In the preamble to the regulations

implementing the Act, HUD noted "the clear legislative history

indicating that Congress intended that the definition of

'handicap' be fully as broad as that provid