Bragdon v. Abbott: expanding the reach of the Americans with Disabilities Act.

• Author: Shawrieh, Sherena

By failing to limit its holding that infertility is a disability covered by the ADA, the Supreme Court has continued the old uncertainties

SINCE War World II, the U.S. Congress has recognized, via limited and sporadic enactments, the need to extend equal rights to people with disabilities. One of the first, in 1948, was designed to assist disabled veterans by prohibiting employment discrimination in the U.S. Civil Service based on physical handicaps. Two decades later came the Architectural Barriers Act of 1968, which requires buildings constructed, altered or financed by the federal government to be accessible to and usable by people with disabilities. Then came the Rehabilitation Act of 1973, which prohibits discrimination against persons with disabilities in any program or activity receiving federal financial aid.

While the 1973 act was a step forward, the nation lacked a "comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and seeing clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap."(1) The Americans with Disabilities Act of 1990, which appears as subsequently amended in scattered sections of 29 U.S.C., has that purpose. It objective, as stated in 29 U.S.C. [sections] 12101(b)(1)-(2) is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities."

One of the major questions by the ADA has been the determination of who qualifies as being an "individual with a disability." Congress defined disability in Section 12102(2)(A) as "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual, but the definition itself is ambiguous. Courts have experienced difficulty in construing the term "disability" and especially in determining the intent of the phrase "major life activity."(2)

These difficulties are the major obstacles in the successful implementation of the provisions of the ADA.

The U.S. Supreme Court in Bragdon v. Abbott moved closer to clarifying the meaning of "disability."(3) The Court held that asymptomatic HIV (human immunodeficiency virus) is an impairment and that reproduction is a "major life activity." Justice Kennedy delivered the opinion of the Court, in which Justices Stevens, Souter, Ginsburg and Breyer joined. But Justice Stevens filed his own concurring opinion, in which Justice Breyer joined, and Justice Ginsburg also filed her own concurring opinion. Chief Justice Rehnquist concurred in part and dissented in part, joined by Justices Scalia and Thomas. Justice O'Connor filed her own concurrence in part and dissent in part.

The clarification of the ADA in Bragdon opens the door for individuals other than asymptomatic HIV sufferers to seek protection under the provisions of the ADA.

ADA BACKGROUND

The ADA provides a civil rights cause of action for disabled persons who for decades have been discriminated against solely because of their disability.(4) The disability civil rights model focuses on what the disabled are capable of offering society.(5) It recognizes that the physical and mental disabilities of individuals are not the only "barriers" that keep them out of the workplace, but it also "recognizes and addresses the societally constructed barriers that exist [and] ... attempts to level the `playing field' by addressing attitudinal and physical barriers that restrict the participation of people with disabilities in our society."(6)

Title I of the ADA prohibits discrimination in employment against otherwise qualified individuals with a disability. Title II prohibits discrimination in public services. Title III prohibits discrimination in public accommodations.

1. Disability Defined

   In order to establish a prima facie case of discrimination under the ADA, one must first establish that he or she is an individual with a disability. To be "disabled," a person must have a physical or mental impairment; that impairment must affect one or more major life activities, and the major life activity must be substantially limited by the impairment. The ADA definition of "disability" was taken directly from the definition of an "individual with a handicap" in the Rehabilitation Act.(7) Congress did not supply a laundry list of what it considered impairments, nor did it define what it considered to be a "major life activity.(8)

2. Interpretation in Regulations

   In order to implement certain provisions of the ADA, Congress charged two executive agencies with promulgating regulations. The Equal Employment Opportunity Commission is responsible for regulations under Title I and the Department of Justice for regulations under Titles II and III. While the ADA does not explicitly delegate to the EEOC or the DOJ the authority to interpret "disability," it "implicitly authorizes these agencies to interpret the statutory definition of `disability' in their determination of who qualifies for federal protection."(9)

   Both sets of regulations define physical impairment in the same way, stating that physical or mental impairment means "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."(10)

   The DOJ regulations go a step further in that they give a laundry list of certain conditions that are expressly included as impairments.(11) This list is the same as the examples contained in sections of the regulations promulgated under the Rehabilitation Act, except for a few additions including the addition of "HIV disease (symptomatic or asymptomatic)." Although Congress declined to include any list in the act, it did place a nearly identical list in the legislative history.(12)

   Although the ADA fails to define "major life activity," both the EEOC and the DOJ regulations define it by giving a non-exhaustive list of functions "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."(13) The interpretive guidance to the EEOC regulations stresses that this list is not exhaustive but also includes such functions as "sitting, standing, lifting, [and] reaching."(14) Once again, these regulations adopt the terminology found in the regulations implementing Section 504 of the Rehabilitation Act.

   To have a disability under the ADA, it is not enough that a person has an impairment that affects a major life activity. Under Section 12102(2)(A), the impairment must...