Upgrades to ADA product of bipartisan cooperation

In the furor over the collapse of the financial markets, a triumph of bipartisanship in the U.S. Congress has gone largely unheralded. New amendments to the Americans with Disabilities Act, passed by Congress and signed into law by President Bush, restore protection to people with disabilities that has been eroded by restrictive Supreme Court decisions over the past 18 years. The amendments are important in their own right and deserve significant attention. Equally noteworthy, they stand as an example of what can be accomplished when Americans come together to work in the best interests of society —- the kind of bipartisan cooperation that both political parties claim is the key to our future success as a nation.

When the ADA was passed in 1990, disability advocates celebrated what they believed to be the beginning of the end of society’s marginalization of millions of Americans with physical and mental impairments. They hoped that the ADA would facilitate the integration of people with disabilities into all facets of life. That dream, however, has yet to be realized, in part because of the restrictive definition of disability adopted by courts. In cases involving race, sex and age discrimination, it is usually self-evident whether someone is a member of the class protected by the law.

In contrast, whether someone is disabled and entitled to the law’s protection depends on judicial interpretation of the ADA’s definition of disability.

To establish a disability, an individual must show that he or she has a physical or mental impairment that substantially limits a major life activity, is regarded as having such an impairment, or has a record of such an impairment. Once established, this status entitles the holder to protection from discrimination and to reasonable accommodation of non-essential functions on the job. If the individual cannot establish a protected disability, the court will not consider the question of whether the employer engaged in discriminatory conduct.

In their zeal to limit the law’s protection to the “truly disabled,” courts have interpreted the definitional terms in a highly restrictive way that is inconsistent both with common sense and original Congressional intent. Of particular significance, the Supreme Court has directed that when evaluating whether an impairment is “substantially limiting,” courts must consider the medication and corrective measures employed by the individual to alleviate the impairment’s effects.

As a result, if a person’s disorder is even moderately controlled, it is very difficult to establish a legal disability. This makes sense in the context of determining whether a person who has perfect vision with eyeglasses is disabled in any meaningful sense. It makes little sense, however, when applied to impairments that often fall within society’s collective understanding of disability. People with mental retardation, epilepsy, diabetes, cancer and bipolar disorder all have been denied coverage under the act. The odd result of this approach is that people with impairments who are most likely to be qualified and able to work have been the least likely to receive the law’s protection from discrimination.

The ADA amendments turn back the restrictive definition of disability in a number of important ways. Among other things, they direct courts to evaluate a plaintiff’s medical condition without regard to the mitigating measures employed to control the disorder, with the exception of ordinary eyeglasses and contact lenses. The amendments also make it easier for employees to establish that they are regarded as being disabled by their employer. As a result, employees who are treated poorly based on the mistaken belief that they are disabled will be protected more readily from discrimination. Throughout the bill’s text, Congress makes clear that courts must turn the focus of disability litigation away from a parsimonious inquiry into the plaintiff’s medical status to a considered evaluation of the defendant’s conduct.

The ADA amendments were the product of sustained negotiated compromise between the business community and civil rights advocates over the last year. By working together, these parties drafted a law which balances disability advocates’ desire for broad protection with the business community’s legitimate concern that those with more limited impairments not be swept within the law’s coverage.

> Wendy Hensel is a law professor at Georgia State University.