Author:Muller, Christine M.

Introduction: The Americans with Disabilities Act & ADHD I. The History and Importance of the Americans with Disabilities Act A. The Purpose of the Americans with Disabilities Act B. Prohibitions C. Important ADA Terms 1. "Disability" 2. "Major Life Activity" 3. "Substantial Limitation" 4. "Mitigating Measures" D. Further Defining "Substantial Limitation" II. The Narrowing of the ADA's Protections A. The Narrowing of Mitigating Measures: Sutton v. United Airlines, Inc. B. The Narrowing of "Substantial Limitation": Toyota Motor C. Narrowing the ADA's Scope Through the Application of Case Precedent and Judicial Bias: Knapp v. City of Columbus III. The Legal and Cultural Perceptual Hurdles ADHD Individuals Must Overcome A. Judicial Bias B. ADHD: Not Limiting Enough to Warrant ADA Protection IV. Pre-ADA Amendment Cases and the Comparative Standard in the Higher Education Context A. The Timothy Herzog Case B. The Thomas Palotai Case C. Price v. National Board of Medical Examiners V. ADA Amendments A. ADA's Intent B. Overruling Sutton and Toyota Motor 1. Overruling Sutton i. Mitigating Measures and ADHD 2. Overruling Toyota Motor C. The "Substantially Limits" Qualification D. The Effects of the ADAAA VI. Post-ADAAA Cases A. Weaving v. City of Hillsboro B. Healy v. Nat'l Bd. of Osteopathic Med. Exam'rs VII. The "Substantially Limits" Solution A. "Substantially Limits": The Same Pre-ADA Amendments and Post-ADA Amendments? B. Applying the Solution: Revisiting the Matthew Healy Case C. The Solution is in Accordance with the ADAAA's Mitigating Measures D. The Solution's Applicability to the Employment Context: Revisiting the Weaving Case VIII. Conclusion INTRODUCTION

The Americans with Disabilities Act ("ADA" or "Act") has provided millions with much-needed protection from discrimination in critical areas such as employment, housing, public accommodations, and education based on their disabilities. (1) However, the Act will not serve its vital purpose for many of those suffering from disabilities that--although well understood in medical and scientific literature--have escaped intended judicial interpretations and associated regulations.

Severe inattentive behaviors, like those indicative of Attention Deficit Hyperactivity Disorder ("ADHD"), were first described in 1902. (2) Seventy-eight years later, ADHD became a recognized medical condition. (3) Today, ADHD is one of the most common neurodevelopmental disorders. (4) ADHD interferes with the brain's volume, maturation, and function. (5)

ADHD is not a mere inattention or hyperactivity problem; rather, "ADHD is a complex mental disorder that affects a person's ability to regulate cognition and emotions." (6) ADHD symptoms are hard to identify and may manifest themselves in a variety of ways. (7) Symptoms of hyperactivity include "excessive restlessness and the recurring desire to walk and run around." (8) Persons with ADHD "can be fidgety, interruptive, incapable of awaiting their turn, and act on impulse regardless of the consequences." (9) Hyperactivity symptoms manifest into angry outbursts and rash decision-making. (10) Inattentive symptoms include difficulties in following instructions, paying close attention, being patient, waiting one's turn, recording important details, organization, engaging in tasks that require sustained mental effort, and remembering important facts and details. (11) Inattention symptoms may also manifest into making avoidable careless mistakes. (12)

These symptoms result in real problems and create occupational, academic and social impairments. (13) The University of Massachusetts conducted a three-year scientific study on ADHD in adults, which compared workplace experiences of adults with ADHD to workplace experiences of those without ADHD. (14) According to the study, 44.6% of adults with ADHD experienced behavioral problems at work, compared to a mere 2.4% of adults without ADHD. (15) The study also found 17.4% of adults with ADHD had been fired from a job, compared to just 3.7% of adults without ADHD. (16)

ADHD also affects social relationships and interactions by interfering with interpersonal communication. (17) People with ADHD are nearly twice as likely to get divorced. (18) This is because individuals suffering from ADHD often have difficulty listening and honoring promises. (19) Eventually the marital relationship can morph into a parent-child relationship, with all responsibilities designated to one spouse. (20)

In addition to the aforementioned effects of ADHD, a recent Danish study found that individuals suffering from ADHD are involved in more driving accidents and are twice as likely to die prematurely. (21) In addition, individuals with ADHD face an increased risk of academic failure, substance abuse, and depression. (22)

This Comment will focus on the need to recognize neurodevelopmental disorders (23) such as ADHD in ADA law. This Comment will argue that the ADA's "substantial limitation" qualification, despite Congress's intent that it not be a major hurdle, is still a major obstacle for disabled plaintiffs to overcome and often excludes individuals who are successful in academic or work environments. This exclusion stems from the ADA's statutory language that compares an individual's limitation to that of the average person in the general population. In addition, this Comment will examine whether courts are wrongfully analyzing cases by focusing too heavily on the plaintiffs limitation, rather than on the employer's intent to discriminate.

Because individuals who are successful in academic or workplace environments are excluded from ADA protection, this Comment will propose new interpretive guidelines to address whether an individual is "substantially limited" in regard to neurodevelopmental disorders such as ADHD. The new interpretative guidelines focus on how the individual achieved desired outcomes as compared to the general population, rather than if an average person in the general population could achieve such outcomes. These new guidelines will provide ADA protection to individuals who expend extra time and effort in order to succeed and will accurately measure an individual's disability in accordance with the ADA's intent and purpose.

Part I explains how Congress addressed discrimination on the basis of disability through enacting the ADA. Part II discusses how judicial interpretations of the ADA created narrow standards that contradict the original intent of the ADA and how Congress responded to the narrowed judicial interpretation with the enactment of the ADA's 2008 Amendments ("ADAAA"). Part III outlines the legal hurdles plaintiffs with ADHD face, including the cultural perceptual problems that interfere with judicial interpretation and implementation. Part IV illustrates how the ADA's comparative language excludes academically and professionally successful individuals. Parts V and VI explain the ADA's amendments and highlight its impact by comparing pre-ADAAA cases regarding ADHD and ADA protection to post-ADAAA cases. Part VII argues how the "substantially limits" qualification should be interpreted in order to provide broad coverage to individuals who put forth extra time and effort to achieve success. This Comment concludes by indicating why the proposed interpretative guidelines regarding the "substantially limits" qualification is important for the ADA's maintenance of power and how the proposed guidelines can be applied to other disabilities and in other contexts.


    "[U]nlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse.... " (24) The ADA, as the last major piece of civil rights legislation, was enacted to provide protection and legal recourse for individuals who suffered from discrimination on the basis of a disability.

    The Civil Rights Movement of the 1960's resulted in three major pieces of legislation: the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Civil Rights Act of 1968. (25) The Civil Rights Act of 1964 prohibits discrimination on the basis of race, religion and national origin. (26) The Voting Rights Act of 1965 protects the rights of minorities to vote in elections. (27) The Civil Rights Act of 1968 includes Title VII, which prohibits discrimination on the basis of race, religion, national origin, and sex in the sale and rental of housing. (28) Though broad in scope, and crucial to society, these acts do not protect people with disabilities. (29)

    To protect individuals with disabilities, Congress passed Section 504 of the Rehabilitation Act of 1973. (30) Section 504 prohibits discrimination on the basis of disability in federal programs and by recipients of federal financial assistance. However, Section 504 does not protect individuals from discrimination in employment or public accommodations in the private sector. (31) To provide these protections, Congress enacted the ADA. In 1990, the ADA became the nation's first comprehensive civil rights law addressing the needs of people with disabilities by prohibiting discrimination in employment, public services, public accommodations, and telecommunications. (32)

    1. The Purpose of the Americans with Disabilities Act

      The purpose of the ADA is to address major areas of discrimination that individuals with disabilities face on a daily basis. (33) The ADA provides clear and comprehensive instructions to eliminate discrimination on the basis of disability. (34) The ADA enforces its purpose by providing strong and enforceable standards that entities, such as employers, must obey. (35)

    2. Prohibitions

      The ADA prohibits discrimination against an individual on the basis of disability. (36) This means no entity--including employers--may discriminate against a qualified individual...

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