Chmielewski v. Xermac, Inc

580 N.W.2d 817, 457 Mich. 593

• Court: Michigan Supreme Court
• Decided: June 9, 1998
• Docket: 106499, Calendar No. 15
• Status: Published

Opinions

Mat,lett, C.J.

This Handicappers’ Civil Rights Act¹ suit involves the question whether, in considering if a person has a condition that meets the act’s definition of “handicap,” the trier of fact should assess the individual without the benefit of medication or other mitigating measures, or if it should assess the individual’s condition as it presently exists with the benefit of such measures. The act requires that to qualify as having a “handicap” for purposes of coming within the act’s protection, an individual must have a determinable physical or mental characteristic that substantially limits a major life activity. Plaintiff, who underwent a liver transplant and is dependent on antirejection medication, argues that the trial court erred in refusing to give the jury a special instruction to the effect that it should consider his condition without the benefit of his antirejection medication. Because we disagree and find that the requested instruction contravenes the plain language of the statute, we affirm the Court of Appeals affirmance of the jury verdict for the defendant. We also affirm the Court of Appeals holding that the trial court did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s economic condition.

i

FACTS AND PROCEEDINGS

The plaintiff began working as a salesperson for defendant Xermac, a supplier of sophisticated electronic machinery, in the fall of 1985. His duties also included demonstrating and installing machinery. Plaintiff is an alcoholic, although his alcoholism apparently had little or no effect on his ability to perform his job functions.² His alcoholism did, however, have an effect on his liver. In 1988, plaintiff learned that he had cirrhosis of the liver and underwent a lifesaving liver transplant.

He returned to his job in December, 1989, after a six-month medical leave of absence. On January 29, 1990, he signed a sales agreement, in which he agreed to a decrease in his sales territory from a multistate region to an exclusive right for sales in Michigan, an increase in his commission rate for sales, a car allowance, and sales quotas. While he had periodically signed similar agreements while with Xermac, this was apparently the first time the company had included sales quotas. When he signed the document, the plaintiff added his own comment indicating his concern about meeting the sales quotas.³ The plaintiff alleged at trial that his supervisors also began to criticize his work for the first time during the period after his return. In June, 1990, the defendant terminated the plaintiff’s employment, citing his failure to meet the sales quotas delineated in the January, 1990, agreement.

The plaintiff brought this employment discrimination suit and later added a claim for wrongful discharge pursuant to Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). The defendant moved for summary disposition on both claims. The trial court, finding that plaintiff was an employee at will, dismissed the Toussaint claim. The court allowed the discrimination claim to go forward, finding that there were material issues of fact regarding whether the plaintiff came within the protection of the Handicappers’ Civil Rights Act.

The plaintiff’s theory at trial was that the defendant employer terminated him in violation of the hcra to avoid continued health insurance premium increases caused by the liver transplant and his need to take costly antirejection medication for the rest of his life. The plaintiff testified at trial that the plant manager, John Purrett, visited him at his home while on medical leave and informed him that Xermac’s president, Pete Schmitt, wanted to terminate him because of the increased medical insurance costs.⁴ Mr. Donald Shaver, Xermac’s general manager and the plaintiff’s immediate supervisor, also testified that at several meetings he and Mr. Schmitt had discussed the matter of the plaintiff’s medical bills contributing to the company’s increased insurance costs.⁵

The defendant countered plaintiff’s hcra suit by arguing (1) that the plaintiff does not come within the hcra’s protection because he is not handicapped, and (2) that the plaintiff was not terminated because of an alleged handicap, but because of economic necessity. Regarding the first argument, the defendant pursued two lines of defense. First, the act requires that to be handicapped one must be substantially limited in a major life activity. MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A). The defendant argued that since the lifesaving operation, the plaintiff has no limitation in any life activities and consequently cannot claim handicapped status.⁶ Second, the defendant points out that the hcra excludes from the definition of handicap, conditions caused by the use of alcohol that prevent an individual from performing the duties of his job. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). The defendant argued that because the plaintiffs alcoholism necessitated the liver transplant, any claimed handicap flowing from the liver transplant falls outside the act’s protection.

During the trial, the plaintiff sought to exclude evidence relating to his alcoholism and cirrhosis. He argued that it was not relevant because it did not prevent him from performing his job functions and that even if it was relevant, its prejudice outweighed any probative value. The trial court disagreed and denied the plaintiff’s motion.

The plaintiff also sought to exclude evidence regarding the defendant’s economic condition, arguing that the defendant was attempting to assert an economic-necessity defense and that because it did not raise this affirmative defense during discovery or in any responsive pleadings, it was waived. The trial court also denied this motion. It found that evidence of the defendant’s economic condition was relevant to disproving a required element of plaintiff’s prima facie discrimination case because the evidence tended to disprove that he was terminated because of a handicap.

During closing argument, the attorneys for the plaintiff and the defendant focused the jurors’ attention on whether the plaintiff, for purposes of meeting the hcra’s definition of handicap, should be viewed with or without his antirejection medication. The plaintiff’s attorney argued that the law requires that the plaintiff’s condition be considered without the benefit of his medication and that, because he would die if he did not take his medicine, his condition met the hcra’s requirement of substantially limiting a major life activity.⁷ Conversely, the defense argued that the law required that the plaintiff’s condition be viewed as it presently existed, i.e., with the benefit of his medication.

Before closing argument commenced, the plaintiff requested a special jury instruction regarding the effect of mitigating measures, such as medication, on an individual’s handicapped status. The proposed instruction was as follows:

A person that has a determinable physical [characteristic] which substantially limits one or more life activities is handicapped even if the determinable physical condition is controlled with medication or medical care.

The trial court refused to give the instruction, concluding that it was more appropriate to simply instruct the jury in the language of the act, without distinguishing between the plaintiff’s premedicated and postmedicated states. During deliberations, the jury sent a note to the trial judge inquiring about the relevance of the plaintiff’s dependence on medication. The court refused to comment further on the issue and instructed the jurors to rely on the evidence presented and on the instructions already given. The jury returned a general verdict for the defendant.⁸

The Court of Appeals affirmed, rejecting the plaintiffs arguments that the trial court erred in failing to give the proposed special jury instruction and in allowing evidence regarding plaintiff’s alcoholism and defendant’s economic condition. We granted leave to appeal in an unlimited grant order.⁹

n

BACKGROUND

The HCRA prohibits discrimination against individuals because of their handicapped status. The purpose of the act is to mandate “the employment of the handicapped to the fullest extent reasonably possible.” Allen v Southeastern Michigan Transportation Authority, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). The act is remedial, and, as a remedial act, it is to be liberally construed by the courts. See Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998); Allen, supra. Further, in interpreting provisions of the HCRA, analogous federal precedents are persuasive, although not necessarily binding. Robson v General Motors Corp, 137 Mich App 650; 357 NW2d 919 (1984), rev’d on other grounds 427 Mich 505; 398 NW2d 368 (1986). Federal courts have similarly noted that analysis of claims under the HCRA largely parallels analysis under the federal Americans with Disabilities Act. Hamlin v Flint Charter Twp, 942 F Supp 1129, 1136 (ED Mich, 1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481 (ED Mich, 1996).

To prove a discrimination claim under the HCRA, the plaintiff must show (1) that he is handicapped as defined in the act, (2) that the handicap is unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in one of the ways delineated in the statute. Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 743; 440 NW2d 101 (1989). This case primarily involves the first element, i.e., whether the plaintiff is handicapped as defined in the act.

The act, as amended in 1990, defines handicap as follows:

(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:

(A) For purposes of article 2 [employment discrimination], substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion.

(ii) A history of a determinable physical or mental characteristic described in subparagraph (i).

(iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(e); MSA 3.550(103)(e).][¹⁰]

For purposes of employment discrimination under article 2 of the act, the definition of handicap does not include:

A determinable physical or mental characteristic caused by the use of an alcoholic liquor by that individual, if that physical or mental characteristic prevents that individual from performing the duties of his or her job. [MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).]

The act does not specifically address mitigating measures, such as medication. Consequently, we must engage in a more detailed analysis of how such measures affect a person’s handicapped status. We turn next to this issue and will consider the plaintiff’s other claims of error regarding admission of evidence of the plaintiff’s alcoholism and of the defendant’s economic conditions later in this opinion.

in

CLAIMED INSTRUCTIONAL ERROR

The question whether to consider a person’s unmitigated condition in determining handicapped status under the 1990 HCRA definition of “handicap” is one of first impression. Because the HCRA definition mirrors that of the ADA, we examine federal law for guidance.¹¹

While the ADA itself, like the hcra, does not specifically address the issue of mitigating measures, the Equal Employment Opportunity Commission, the federal agency charged with administering the act in the employment context, has determined that an individual’s status should be determined not as it presently exists, but as it would exist without regard to medication or other mitigating measures. The interpretive guidelines state:

The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices. See Senate Report at 23, House Labor Report at 52, House Judiciary Report at 28. For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine. Similarly, an individual with a hearing loss would be considered to have an impairment even if the condition were correctable through the use of a hearing aid. [29 CFR 1630.2(h), Appendix, p 350 (1997). ][¹²]

Despite this interpretive guidance, and the general rule that federal courts accord deference to agency interpretation of the act that the agency is charged to administer,¹³ many federal courts that have considered the issue have rejected the eeoc’s guidelines. Federal courts are split on whether the ADA requires consideration of the individual’s present status, or whether the eeoc guidelines should be followed and consideration be given to the individual’s condition as it would hypothetically exist without the aid of mitigating measures.¹⁴

We find the reasoning of those federal courts that have rejected the EEOC guidelines to be persuasive and that this reasoning applies to our interpretation of the HCRA. We will turn next to a review of the arguments presented by these courts.

First, and most important, the approach taken in the EEOC guidelines contravenes the plain language of the ADA, and also of the hcra. The ADA and hcra definitions require an individual to have a condition that substantially limits a major life activity. In contrast, the administrative gloss imposed on this plain language by the guidelines provides that an individual who would have a substantial limitation if he failed to take his medication or discontinued using other mitigating measures comes within the definition.¹⁵ In other words, the eeoc approach, which is the approach that the plaintiff would have this Court adopt, would require us to read out of the statute the requirement that the individual’s condition substantially limits a major life activity. As this Court has stated on numerous occasions, where a statute is clear and unambiguous on its face, we will follow the clear language as written wdthout engaging in judicial construction. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135-136; 545 NW2d 642 (1996).

Many federal courts have also taken this view. As explained by the court in Coghlan v HJ Heinz Co, 851 F Supp 808, 813 (ND Tex, 1994), a case involving an individual with controlled diabetes mellitus:

Defendant’s argument appears to run like this: In order to have a disability under the ADA, one must have a physical or mental impairment that substantially limits one or more major life activity [sic]. Yet the eeoc’s interpretative guidance states that a diabetic who without insulin would lapse into a coma would be substantially limited because the individual cannot perform major life activities without the aid of medication. This gloss reads “limits” right out of the statute because an insulin-dependent diabetic who takes insulin could perform major life activities and would therefore not be limited. Because the eeoc gloss requires determination of “disability” regardless of an insulin-dependent diabetic’s limitation, it is at odds with the statute. In other words, the eeoc interpretation requires that one not having a limitation be considered as having a disability even though the statutory language clearly requires substantial limitation. [Coghlan at 813.]

This rationale is equally applicable to plaintiffs handicap claim. We must examine the plaintiffs condition as it exists, with the benefit of his antirejection medication. Because he has no limitations of any major life activities, he does not have a handicap.

A recent decision from the United States Court of Appeals for the Sixth Circuit is also instructive. In that case, Gilday v Mecosta Co, 124 F3d 760 (CA 6, 1997), involving a noninsulin dependent diabetic, a majority of the court, consisting of Judges Kennedy and Guy,¹⁶ determined that the ADA required assessing the individual’s condition as it presently existed with his oral medications and his diet and exercise regimen.¹⁷ As Judge Kennedy explained:

In my opinion, the eeoc’s rule on mitigating circumstances conflicts with the text of the ADA and is, therefore, not a “permissible construction of the statute.” Id. To be “disabled” under 42 USC 12102(2)(A), an individual must prove (1) that he has an impairment, and (2) that this impairment substantially limits a major life activity. The eeoc’s rule is at odds with this second requirement. Under the eeoc’s Interpretive Guidance, an individual is considered disabled even if, with the benefit of medication, the individual is not, in fact, substantially limited in any major life activity. The eeoc’s rule, in effect, eliminates the statutory requirement that an impairment “substantially limit]]” a major life activity in order to constitute a disability. As a result, I believe that the ada’s definition of disability “cannot bear the interpretation adopted by” the eeoc in 29 CFR 1630 App 1630.2(j), Sullivan v Everhart, 494 US 83, 92; 110 S Ct 960, 966; 108 L Ed 2d 72 (1990), and therefore, that this Court should not give effect to the eeoc’s interpretive rule. See Public Employees Retirement Sys v Betts, 492 US 158, 171; 109 S Ct 2854, 2863; 106 L Ed 2d 134 (1989) (“[0]f course, no deference is due to agency interpretations at odds with the plain language of the statute itself”). [Id. at 766-767.]

Countering the argument presented by Judge Moore that the eeoc approach is consistent with the legislative history of the act, Judge Kennedy reasoned that “[w]here the statutory text is unambiguous ... as I believe it is here, that ends the matter. ‘[W]e do not resort to legislative history to cloud a statutory text that is clear.’ Ratzlaf v United States, 510 US 135, 147-148; 114 S Ct 655, 662; 126 L Ed 2d 615 (1994).” Gilday at 767. Michigan law in this regard is in accord. Luttrell v Dep’t of Corrections, 421 Mich 93, 101; 365 NW2d 74 (1984); Tryc, supra. Consequently, we reject the plaintiff’s argument that the legislative history of the HCRA supports the view that an individual’s handicapped status should be determined without regard to his actual condition with mitigating measures.¹⁸

We also find persuasive defendant’s argument that the EEOC approach creates a slippery slope that would lead to the inclusion of many commonplace and relatively benign and easily remedied conditions into the act’s definition of handicap. For example, an individual with myopia or hypertension that, when treated, is not substantially limiting would be deemed to be handicapped when viewed in his untreated state. This Court declines to head down that slippery slope.¹⁹ We note that federal courts interpreting similar language in the Rehabilitation Act, the precursor of the ADA, have noted that the high purpose of the act of assuring that truly disabled yet capable individuals are protected from discrimination would be debased if the statute’s protections could be invoked by relatively minor and commonplace impairments. See, e.g., Forrisi v Bowen, 794 F2d 931, 933 (CA 4, 1986). To protect against this, the ADA and the hcra include the requirement that an individual have a condition that substantially limits a major life activity. These words have real meaning. They set the standard for determining which conditions will meet the definition and which will not. By limiting the HCRA’s protection to individuals having conditions that actually impose substantial limitations, the standard preserves the high purpose of the act.²⁰

To these points we add a word of caution. In some instances, an individual’s condition will be substantially limiting despite the use of medications, prosthetic devices, or other mitigating measures. Courts must analyze the individual’s condition case by case. For example, while probably most eyeglass wearers will not have a substantially limiting condition,²¹ there should be no categorical conclusion that all eyeglass wearers fail to meet the HCRA definition. A visual problem that renders the person virtually blind in the morning before he dons his glasses and requires coke-bottle thick lenses to correct his visual acuity might meet the definition. Similarly, a person with an amputated leg who functions quite well with a prosthetic limb might nevertheless meet the definition if he can show that his ambulation is significantly slowed or limited in another way, or if he can show that the use of the limb in itself is time-consuming or substantially burdensome to the performance of his major life activities. An appropriate analogy is a statute that burdens an individual’s right, but does not completely impede his ability to exercise that right. If the burdens associated with use of the mitigating device are great enough, the definition will be met.²²

We note that other jurists have noted the importance of a case-by-case analysis. Judges Kennedy and Guy, in both their separate opinions in Gilday emphasized this point. Judge Kennedy stated:

Of course, it may well be in some instances that the controlling medication (or other mitigating measure) will itself impose a substantial limitation on an individual’s major life activities. In such cases, the individual will be “disabled” [or handicapped] under the ada [or the hcra], [Id. at 767.]

Similarly, Judge Guy stated:

In my view, the impact of mitigating measures must be decided on a case-by-case basis. In some cases a person with a “controlled” medical problem or condition will be completely functional and should be evaluated as such. In other cases a person with a controlled medical condition may still be under a disability as defined by the Act. Indeed, what is necessary to “control” the condition may be part of what makes the person disabled. [Id. at 768.]

likewise, we caution that courts must carefully analyze each individual claiming a handicap and must not categorically apply the definition to a given diagnosis.²³

Having concluded that the law requires the factfinder to assess the individual’s condition as it actually exists, we hold that the trial court did not err in refusing to give the requested instruction. We therefore affirm the Court of Appeals affirmance of the jury verdict for the defendant. We do not, however, endorse the analysis of the Court of Appeals on this issue. That Court concluded that the requested instruction required a finding that a medicated individual is handicapped per se. We cannot agree. When viewed in context of the entire body of instructions given the jury, we do not agree that the requested instruction was misleading in this way.²⁴ We simply note that it was an erroneous interpretation of the law. We also note that, by allowing plaintiff and defense counsel to both present their conflicting views of the law, the jury was improperly placed in the position of choosing which version was the correct statement of the law. This said, however, because the jury’s verdict was not inconsistent with substantial justice, any error in failing to properly instruct the jury regarding the law does not require reversal. Johnson v Corbet, 423 Mich 304, 326; 377 NW2d 713 (1985).

IV

CLAIMED EVIDENTIARY ERRORS

We next turn to the plaintiffs claims that the Court of Appeals erred in upholding the trial court’s admission of evidence of his alcoholism and evidence of the defendant’s economic condition at the trial. A trial court’s decision to admit evidence is within its sound discretion and will not be disturbed absent an abuse of discretion. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995). With this standard in mind, we turn to the first claimed evidentiary error.

A

EVIDENCE OF ALCOHOLISM

As noted earlier in this opinion, for purposes of employment discrimination, the hcra expressly excludes from the definition of “handicap” determinable physical or mental characteristics caused by the use of alcohol when the alcohol-related condition prevents the employee from performing his job duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). The plaintiff argues that even the defendant conceded that his alcoholism did not affect his job performance. Consequently, he argues that evidence of his alcoholism was not relevant to whether he was handicapped. Further, the plaintiff argues that evidence concerning his use of alcohol was not relevant to the issue of damages because it related only to life expectancy, which was not at issue in the case, and not to his projected retirement age. The plaintiff further argues that, even if his alcoholism were relevant, it should not have been admitted because the danger of unfair prejudice from this evidence substantially outweighed any probative value. MRE 403.

We agree with the Court of Appeals that evidence of the plaintiffs use of alcohol was relevant in determining the plaintiffs handicapped status and that its probative value in this regard was not substantially outweighed by unfair prejudice. While at the close of proofs it became fairly apparent that the plaintiffs use of alcohol did not affect his job performance, this was not a foregone conclusion. For example, there was evidence that on at least two occasions his alcohol use might have affected his job performance.²⁵ Further, the defendant presented testimony that the plaintiff was fired because he did not meet his sales quotas. The defendant’s theory was that the plaintiff’s poor work performance, in the form of failing to meet the quotas, resulted from his failure to fully recover from the injuries caused by his alcoholism. While the plaintiff denied any continuing health problems that affected his job performance, this does not mean that the evidence regarding alcoholism was not relevant. The trial court did not abuse its discretion by allowing the jury to hear the evidence on both sides of this issue.

Further, the trial court carefully cautioned the jury regarding how the evidence of alcoholism should be used. The court instructed that plaintiff could not be found to have a handicap if the condition caused by his use of alcohol affected his job duties, but that he could be found to have a handicap if the condition caused by his use of alcohol did not prevent him from performing his job duties. This instruction helped diminish the potential prejudicial effect of the evidence.²⁶

Additionally, we agree with the Court of Appeals that the evidence was relevant to the issue of damages. Expert testimony was elicited to the effect that the plaintiff, as a person with a liver transplant, could expect a lower life expectancy. From this evidence, a reasonable jury could infer that the plaintiffs ability to continue in his employment might be affected, reducing the amount of damages flowing from the alleged employment discrimination. Further, the plaintiff sought damages for mental anguish and other noneconomic damages. The amount of these damages would have been directly related to life expectancy. Consequently, we conclude that the Court of Appeals did not clearly err in concluding that the trial court did not abuse its discretion in allowing evidence of the plaintiff’s alcoholism.

B

EVIDENCE OF DEFENDANT’S ECONOMIC CONDITION

The plaintiff also contends that the Court of Appeals erred in upholding the trial court’s admission of evidence of the defendant’s financial condition. The plaintiff argues that because the defendant did not raise economic necessity as an affirmative defense in its responsive pleadings or in discovery, all evidence concerning the defendant’s financial condition should have been excluded at trial. We agree with the Court of Appeals analysis of this issue. That Court stated:

An affirmative defense is a defense that does not controvert the establishment of a prima facie case, but that otherwise denies relief to the plaintiff. [Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993).]

In a handicap discrimination case, the plaintiff has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of the handicap. Dzierbowicz v American Seating Co, 209 Mich App 130, 132; 530 NW2d 158 (1995), rev’d on other grounds 450 Mich 969 (1996). Evidence that the decision to terminate the plaintiff was motivated by economic considerations directly controverted this element of the prima facie case and, therefore, by definition did not constitute an affirmative defense. Stanke, supra. Accordingly, the trial corut did not abuse its discretion in admitting evidence of defendant’s financial condition. [216 Mich App 707, 712-713; 550 NW2d 797 (1996).]

We agree and affirm the Court of Appeals conclusion that the trial court did not abuse its discretion in allowing evidence of the defendant’s economic hardship at trial.

v

conclusion

Because the plain language of the hcra requires that an individual actually have a determinable characteristic that substantially limits a major life activity, we hold that the trial court did not err in refusing to give the plaintiff’s requested special jury instruction. This instruction would have erroneously allowed the jury to find a handicap even if it concluded that, with the plaintiff’s antirejection medication, he presently suffered no substantially limiting condition.

We further hold that the trial court did not err in allowing evidence of the plaintiffs alcoholism and of the defendant’s financial status. The evidence of alcoholism was relevant to whether the plaintiff’s condition met the hcra’s definition of handicap and to the issue of damages. Further, the trial court cautioned the jury regarding the appropriate use of the evidence. We find that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The evidence of the defendant’s financial condition tended to disprove that the plaintiff was fired because of his alleged handicap, an element of the plaintiff’s prima facie case. Consequently, the trial court correctly rejected the plaintiff’s argument that by failing to plead economic necessity as an affirmative defense, the defendant had waived any argument relating to its economic condition.

For these reasons, we affirm the Court of Appeals affirmance of the jury verdict for the defendant.

Brickley, Boyle, Weaver, and Taylor, JJ., concurred with Mallett, C.J.

1 MCL 37.1101 et seq.-, MSA 3.550(101) et seq.

2 Plaintiff might be described as a “functional alcoholic.” Although his alcoholism did not generally interfere with his job, he did have two episodes at work related to his alcoholism. One occurred shortly before his liver transplant when he was making a call on a General Motors customer in Bay City, Michigan. He apparently lost consciousness during this call and was taken to a General Motors medical facility. The other incident involved feelings of faintness while on a call in Indianapolis, Indiana.

3 The plaintiff added this statement, “[b]ecause of my absence, the increased competition, and economic climate, I have concerns about meeting these quotas.”

4 The record discloses that the plaintiff’s liver transplant cost the defendant’s medical insurer more than $130,000 and that the continuing costs related to the antirejection medications are approximately $700 a month. Mr. Purrett testified that the medical procedures and medications caused the defendant’s health insurance premiums to increase by approximately $15,000 a year.

5 The defendant, however, presented evidence that increased insurance costs were not the reason for the discharge. For example, Mr. Schmitt testified that he was not aware that a liver transplant caused the insurance premiums to increase by a specific amount. The defendant also presented a chart showing a comparison of monthly premiums billed for certain Xeimac employees. This chart revealed that while the premiums billed for the plaintiff more than doubled between 1988 and 1990, similar or even greater increases in premiums occurred for other employees. The chart also indicated that premiums for at least six other employees were significantly higher than those for the plaintiff.

6 In fact, the plaintiff does not dispute that with the benefit of his operation and the antirejection medication, he is in good health and currently has no functional limitations.

7 The plaintiff’s medical expert, Michael R. Lucey, M.D., testified as follows:

Q. What would happen to Gary if he ceased taking these medications that you referred to?

A. If he stops taking his immunosuppressive medicines, he will reject his liver graft, and he will die, unless he’s transplanted again.

8 Because the parties could not agree on a special verdict form, the court used a general form. Consequently, it is impossible to determine whether the jury presumed that it should consider plaintiffs medicated state and determined that he was not handicapped, or if it found the plaintiff to be handicapped, but granted no relief for some other reason. For example, it might have believed the defense position that the defendant actually did terminate the plaintiff because he did not meet the sales quotas and because it was experiencing an economic downturn and could not justify continuing plaintiffs sales position.

9 456 Mich 869 (1997).

10 We note that the plaintiff does not rely on subsections (ii) or (iii) to prove his i-icra claim. Consequently, this opinion does not deal with the interpretation of these provisions.

11 In pertinent part, the ADA defines “disability,” the term used in that act in place of the hcra’s term “handicap,” as follows:

a physical or mental impairment that substantially limits one or more of the major life activities of [the] individual .... [42 USC 12102(2)(A).]

12 See also 29 CFR 1630.2Q), Appendix, p 351 (1997), which states that “[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices.”

13 See, e.g., Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).

14 See, e.g., Coghlan v HJ Heinz Co, 851 F Supp 808 (ND Tex, 1994), and Harris v H & W Contracting Co, 102 F3d 516 (CA 11, 1996). The dissent’s suggestion that the overwhelming majority of federal courts have adopted the eeoc approach is misleading. Rather, federal district courts appear to be fairly evenly divided on the issue. Further, while there does appear to be a majority of federal courts of appeals that have followed the eeoc, there also appears to be a recent trend toward disregarding the eeoc guidelines. See, e.g., Gilday v Mecosta Co, 124 F3d 760 (CA 6, 1997). We also note that the eeoc guidance carries far less persuasive force for this Court in interpreting a Michigan statute than it does for federal courts in interpreting the ADA.

15 As noted by the court in Sutton v United Air Lines, Inc, 130 F3d 893, 902 (CA 10, 1997), “we are concerned with whether the impairment affects the individual in fact, not whether it would hypothetically affect the individual without the use of corrective measures.” The court in Sutton held that mitigating measures, in that case eyeglasses, must be taken into consideration in determining whether an individual’s impairment substantially limits a major life activity.

16 It should be noted that although Judge Moore’s opinion appears as the lead opinion, Judge Kennedy’s opinion is controlling regarding the definitional question at issue here.

17 Judge Moore accepted the eeoc guideline approach. In her view, the eeoc’s interpretation is consistent with the text of the statute because “[a] person with a serious disability who depends on medicine or a medical device to ameliorate the effects of that disability nonetheless has a limit on a major life activity: without the corrective measure the person would be unable to perform a mqjor life activity.” Gilday, supra at 763. Judge Moore also reasoned that the eeoc approach is consistent with the purpose of the statute. She also found support for the agency’s interpretation in the legislative history of the act. Other courts that have embraced this view have utilized similar reasoning. See, e.g., Harris v H & W Contracting Co, n 14 supra; Roth v Lutheran General Hosp, 57 F3d 1446 (CA 7, 1995); Sicard v Sioux City, 950 F Supp 1420 (ND Iowa, 1996).

18 In this regard, the plaintiff presents a statement by former Representative H. Lynn Jondahl, a cosponsor of the 1990 amendments of the hcra, to the effect that persons with controlled diabetes or epilepsy are protected by the act. Besides the irrelevance of such statements where the act is unambiguous, we note that the opinion of a single legislator is not necessarily equivalent to the intent of the entire Legislature at the time of enactment. Consequently, the dissent’s reliance on this “legislative history” is specious.

19 The dissent fails to truly understand this argument. It states, post at 631, n 14, that the slippery slope argument does not apply because courts must continue to undertake a case-by-case analysis. Even if under the eeoc approach courts were to examine each case individually, by failing to consider the individual’s actual state as it presently exists with mitigating measures, more and more individuals with easily remedied conditions, whom we believe the Legislature did not intend to sweep into the act’s protection, would be deemed handicapped.

20 The dissent claims that we neglect to consider the purpose behind the act and instead rely on a “strained plain-language argument.” Post at 624. To the contrary, as we have noted, our analysis is consistent with the purpose of the act, which is to afford protection to the truly disabled. Further, we fail to understand how upholding the definition’s clear language can be deemed a “strained” argument. The act clearly requires that the characteristic substantially limits a major life activity. Surely, one could not seriously characterize as “strained” an analysis that honors the Legislature’s choice of the present tense.

21 See, e.g., Sutton, supra.

22 Judge Moore, in her lead opinion in Gilday, used this analogy, but to reach the wrong conclusion. She stated that “[t]o put a condition on the activity of, for example, hearing, limits that ability, in the same way that putting a condition on the exercise of a right impairs that right.” Id. at 763. What Judge Moore overlooked is that not every condition placed on the exercise of a right is tantamount to an impairment of it.

23 The dissent makes much of three Michigan Court of Appeals cases, Hines v Grand Trunk W R Co, 151 Mich App 585; 391 NW2d 750 (1985), Crittenden v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), and Szymczak v American Seating Co, 204 Mich App 255; 514 NW2d 251 (1994), which it reads as supporting its view that this Court should disregard the individual’s condition as it exists with mitigating measures. Even if those Michigan Court of Appeals cases were binding on this Court, which of course they are not, they are distinguishable and actually support assessing the individual in his present medicated state.

Hines is simply not applicable, because it interprets the pre-1990 definition of handicap, and actually stands for the proposition that one should consider an individual’s mitigated state. Hines required analysis of whether an insulin-dependent diabetic met the pre-1990 definition of handicap. That definition did not require a substantial limitation of a major life activity. It did, however, require that the individual have a condition resulting from disease, or a history of such a condition, that is unrelated to the individual’s ability to perform the duties of the job. The defendant apparently argued that Mr. Hines, as a matter of law, could not meet the definition because his diabetes affected his ability to perform his job functions. The Court determined that, because with his insulin the plaintiff’s diabetes might not affect his job, it was improper to determine that he was not handicapped as a matter of law.

Crittenden similarly involved whether the plaintiff’s condition, hypertension, rendered him unable to perform the available work. The Court held that whether plaintiff’s condition rendered him unable to perform the work was a factual question that should be determined by the jury. As in Hines, Crittenden analyzed the pre-1990 definition of handicap and actually supports looking at the person in his medicated state. Particularly, the Court dispensed with the defendant’s argument that plaintiff was not handicapped because his hypertension would affect his work by noting that the plaintiff had presented evidence that his hypertension, when controlled by medication, would not affect his working ability. Id. at 332.

In Szymczak, the Court of Appeals determined that there was a disputed factual question whether the plaintiff’s seizure disorder rendered him unable to safely perform his job. Even when medicated, the plaintiff had a history of seizures that came on without warning. The Court determined that if the job required the use of power tools, the danger presented from the unpredictable seizures would render him unable to perform the job, even with his medication.

A close review of the facts and analyses of these cases, rather than supporting the dissent’s view, actually supports the view that the individual should be assessed in his present medicated condition. Further, the dissent’s claim that under our analysis the plaintiffs in Hines and Szymczak would not meet the definition is incorrect. Mr. Hines’ diabetes was apparently not fully controlled with insulin, defendant’s physician had found that his blood sugar was unacceptably high. We simply do not know whether his condition, with medication, would limit a major life activity. Similarly, Mr. Szymczak’s seizure disorder was not fully controlled with medication. Conceivably, his uncontrollable and unpredictable seizures might be disruptive enough to constitute a substantial limitation of a major life activity under the current definition.

24 The Court of Appeals mischaracterized the requested instruction as defining a handicap. A careful review, however, shows that the instruction merely attempted to clarify, albeit mistakenly in our view, that a condition that would be substantially limiting if not for the mitigating measures meets the definition. The jury was also instructed regarding the definition of “handicap” from the verbatim language of the hcra. Likewise, we do not deem determinative the absence of the word “major” before the words “life activities” in the proposed instruction. The phrase “major life activities” was included in the instruction regarding the hcra. definition of “handicap.”

25 See n 2.

26 The trial court’s instructions in this regard were as follows:

Now, ladies and gentlemen, if the history of the physical characteristic was caused by the use of alcoholic liquor but the physical characteristic did not prevent the Plaintiff from performing his job, then you are to disregard the fact that use of alcohol caused the physical characteristic.

On the other hand, if you find that the Plaintiff has a determinable physical characteristic caused by the use of alcoholic liquor and that characteristic prevented the Plaintiff from performing the duties of his job, then the Plaintiff is not handicapped under the law.

A person, ladies and gentlemen, cannot have a history of determinable physical characteristic to be construed as a handicap if the physical characteristic was caused by the use of alcoholic liquor which prevented the person from performing the duties of his job.