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French v. Hawaii Pizza Hut9/30/2004
ent may, "by nature," impose a substantial limitation on the individual's ability to perform a major life activity on account of its undeniably pronounced impact on the individual's physical or mental abilities. HAR § 12-46-182 (1998). An individual whose impairment is so classified is entitled to the presumption that her major life activities are substantially limited, and is consequently relieved of any further obligation to produce evidence that she is disabled.
Should the impairment fail to satisfy the threshold of severity necessary to establish that it is substantially limiting by nature, the burden remains with the individual to produce comparative evidence indicating that the "average person in the general population" can either perform the major life activity that the individual cannot; or else is able to perform the activity under conditions, in a manner, or for a duration that the individual cannot. The plain language of HAR § 12-46-182 unequivocally requires the production of such comparative evidence as an essential element of a discrimination claim based on disability. Cf. RGIS Inventory Specialist v. HCRC, 104 Hawaii 158, 160, 86 P.3d 449, 451 (2004) ("If an administrative rule's language is unambiguous, and its literal application is neither inconsistent with the policies of the statute the rule implements nor produces an absurd or unjust result, courts enforce the rule's plain meaning." (quoting Intern'l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 323, 713 P.2d 943, 950 (1986))).
Applying the foregoing construction, Appellant's claim that she is disabled cannot stand. Appellant makes no attempt to show that her lifting restriction is in some way analogous to the impairments of "blindness, deafness, HIV infection, AIDS" that HAR § 12-46-182 identifies as being substantially limiting "by their nature." I am moreover convinced that any such attempt would fail, in light of the number of federal circuits now holding that a twenty-five pound lifting restriction does not, as a matter of law, constitute a substantial limitation on a person's ability to lift. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 644 (2d Cir. 1998) (ability to "lift objects . . . of maybe ten to twenty pounds" does not "support the conclusion that [plaintiff] is 'substantially' impaired in his ability to . . . lift . . . as compared with the average person"); Marinelli v. City of Erie, 216 F.3d 354, 364 (3d Cir. 2000) (ten-pound lifting restriction "does not render [plaintiff] sufficiently different from the general population such that he is substantially limited in his ability to lift"); Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996) (" e hold, as a matter of law, that a twenty-five pound lifting limitation -- particularly when compared to an average person's abilities -- does not constitute a significant restriction on one's ability to lift, work, or perform any other major life activity."); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998) (holding that plaintiff's inability to lift more than "twenty pounds frequently . . . is insufficient for a reasonable jury to find a substantial limitation on a major life activity"); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (plaintiff's ability to "do lifting and reaching as long as she avoids heavy lifting and repetitive rotational movements . . . [presents] no evidence . . . on which a jury could find that this impairment substantially limited a major life activity"); Helfter v. United Parcel Svc., Inc., 115 F.3d 613, 617 (8th Cir. 1997) (inability to "lift more than ten pounds frequently and twenty pounds occasionally" does not substantially limit majo
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