Just semantics: the lost readings of the Americans with Disabilities Act.

AuthorAnderson, Jill C.

ARTICLE CONTENTS INTRODUCTION I. THE NARROWED DISABILITY DEFINITION A. A Smoking Gun Scenario? B. Scrutinizing "Impairment" and "Major Life Activities" II. DE DICTO-DE RE AMBIGUITY IN THE REGARDED-AS PRONG A. Ambiguity and Lawyers B. Nouns as Referring or Nonreferring Expressions C. Referentially Ambiguous Contexts and the De Dicto-De Re Distinction 1. Ambiguity in the Regarded-As Prong 2. Wide-Scope and Narrow-Scope De Re Readings III. HOW THE COURTS MISS AMBIGUITY A. The Supreme Court Is Silent on Ambiguity in the Regarded-As Prong B. Lower Courts Miss All Readings Other Than Wide-Scope De Re 1. Courts Overlook the De Dicto Reading of "Impairment" 2. Courts Overlook the De Dicto Reading of "Major Life Activities" 3. Courts Overlook Narrow-Scope De Re Readings C. The Analytical Flaw in Applying a De Re-Only Inquiry D. Courts Take De Re Readings for Granted IV. RESOLVING AMBIGUITY A. De Dicto Readings Should Be Endorsed B. Narrow-Scope De Re Readings May Be Properly Excluded V. APPLICATION TO CASE LAW A. Stigmatized Impairment Cases B. Not-Disabled-Enough Cases C. Proxy Cases VI. IMPLICATIONS FOR REFORM A. The List of Major Life Activities B. ADA Restoration Act C. Implications of De Dicto-De Re Ambiguity Beyond the ADA CONCLUSION INTRODUCTION

"Absurd"; (1) "bizarre"; (2) "counterintuitive." (3) These are the ABCs of the ADA-the Americans with Disabilities Act of 1990 (4)--from the perspective of many disability rights advocates and commentators on the jurisprudence interpreting this statute. (5) The ADA, heralded upon its enactment as comprehensive civil rights protection for people with disabilities in areas such as employment, (6) has lost much of its expected force in the courts. There the statute's definition of an "individual with a disability" has become a tripwire for plaintiffs, (7) who must meet this definition in order to claim ADA protection. (8)

Particularly vexing for plaintiffs is the requirement to show as a threshold matter that they have, or are regarded as having, "an impairment" that substantially limits a "major life activit[y]." (9) The detailed inquiry around these terms has tended to eclipse or preclude argument over what would typically be the crux of a discrimination claim: whether discriminatory animus motivated an employment action. This disconnect between ADA goals and ADA jurisprudence has given litigation under the statute a surreal tinge. For example, an employee suffering from schizophrenia, who was refused employment after the employer told her she was "physically and mentally incapable of having a job," loses her case because she cannot prove that she was regarded as having a mental impairment. (10) Similarly, the claim of an employee with end-stage kidney failure, who was denied accommodation for dialysis treatment, becomes a contest over whether "eliminating waste from the body" is a major life activity. (11)

Advocates and commentators largely agree that the root of this doctrinal problem is the language of the disability definition itself, compounded by the courts' unwillingness to veer from it. (12) As the lament goes, the courts' "literalist reading" (13) of the definition's unfortunate wording yields absurd results that run counter to the clear intent of Congress. (14) In interpreting "impairment" and "major life activities" narrowly, courts have held that conditions the ADA drafters assumed would be covered as actual disabilities under the Act are not, in fact, disabling, (15) They have likewise dulled the "regarded-as" prong of the statute, which had been understood as a catch-all provision for conditions that are not actually disabling but are viewed by employers as such. (16) Advocates have conceded that the regarded-as prong of the definition suffers from the same technical flaws as the actual-disability prong. (17) Accordingly, the critique of the courts' "obsessive" (18) literalism is a tempered one. As one important commentator suggests, it is hard to fault the courts for reading the statute as written. (19)

The conversation in the disability rights movement, then, has moved from a stunned "what happened to the ADA?" to a determined "what can we do about it?" (20) Recently, a swell of dissatisfaction with the statutory language has sparked an effort to overhaul the definition of disability legislatively. This revision has been termed "the big prize" sought through the multifaceted ADA Restoration Act of 2007. (21) The goal of this proposed legislation is to step back to an earlier, more expansive understanding of what Congress intended having a disability-and being regarded as disabled-to mean. Now in congressional committee, (22) the Act would eliminate the "major life activities" requirement and thereby remove an important hurdle for plaintiffs. (23) But "would" and "will" are not the same thing, and though the former may reflect the hopes of the plaintiffs' bar, the latter is a function of another kind of will-the political variety-that many view as currently lacking. (24) If the outlook for rewriting the ADA is gloomy, then the same may be said for much of disability rights advocacy in the near term.

I suggest taking a different kind of step back: rather than throw in the towel on the wording of the disability definition, advocates should reconsider the potential of the statute as written. For the courts have not read the disability definition too closely, but just the opposite: they-and perhaps we all, as lawyers-have not read it closely enough. Were courts to access ordinary intuitions as to what it means to regard someone as having a disability, they would notice that this language can describe categorically distinct types of factual scenarios. That is, the definition is structurally ambiguous in a very precise way. (25) This type of ambiguity is easily spotted and well-theorized in the field of linguistics, where it is termed the de dicto-de re distinction, (26) yet it has gone all but unnoticed in the law. (27) To make matters worse, the ambiguity is not a simple two-way split. Both "impairment" and "major life activities" are susceptible of three different interpretations, so the full regarded-as prong has no fewer than nine distinct literal readings-nine possible ways a plaintiff might count as disabled under this prong. It is striking, then, that the courts to date seem to have missed all but one of those legitimate readings; the other eight are effectively lost. (28)

Eight "lost readings" of the regarded-as prong might sound overwhelming for the reader or for the courts. But the ambiguity in question is actually of a kind that we resolve every day without thinking about it, as some simple sentences discussed in Part II will show. And like anything we handle naturally and unconsciously but would be hard pressed to explain, it is thinking about it that poses a challenge in law, where we thus far lack a vocabulary for making structural semantic ambiguity salient. Toward that end, I borrow some terms, methods, and logical notation from basic formal linguistics to make the ambiguity stand out to the reader (29) and to give the reader some handles to hold onto for distinctions of meaning that can be slippery. Importantly, though, this Article is less an attempt to bridge the gulf between law and linguistics than to reconcile everyday speaker competency on the one hand with legal reasoning on the other, in a context where the need for such competency in the courts is a pressing matter of civil rights.

A close, formally rigorous reading of the statute would expose its structural ambiguity and call for grappling with these lost readings. Acknowledging ambiguity would give courts further reason to consult sources outside the words of the regarded-as prong itself-in particular, the statute's legislative history. Tapping this history for the purpose of statutory construction would be a significant triumph for the disability rights movement, perhaps nearly as much of a triumph as a legislative overhaul of the statute. (30) That history is where advocates hold all the high cards: Congress placed ample signposts of the broad remedial intent behind the ADA throughout this record. A thorough interpretive process would undoubtedly expand judicial interpretation of the regarded-as prong.

Yet this approach would not extend the ADA unreasonably, as some employers may fear, to make every workplace grievance a potential claim under the regarded-as prong. Of the nine readings I identify, I propose that only four of them comport with legislative intent. The kinds of claims reached by these four readings would in no way stretch the intended application of the ADA. Rather, such claims are emblematic of disability discrimination, yet paradoxically they have been held not to be actionable under the current state of the law.

To be sure, the ADA's definition of disability is far from perfectly tailored to its purposes. Experience in disability rights litigation might suggest that crafting such categories as "major life activity" was a design flaw in the first place. The explanation, of course, is that the ADA's disability definition was never the product of design at all. Rather, it is an artifact of tinkering with the language of predecessor statutes, particularly the Rehabilitation Act of 1973. (31) In this way, the ADA resembles an old Victorian house that has been modified over time to suit modern needs: its layout may be quirky and suboptimal at this point, but what matters is whether it is ultimately functional once we see its potential. Before setting our sights on a politically ambitious remodeling of the ADA, we may first want to expand our sense of its structural capaciousness, reevaluate the narrow paths thus far trodden through it, and find new ways to make it livable. Doing so would require reclaiming the high ground of rigorous interpretation and faithfulness to the text of the statute, territory that has too long been ceded to a jurisprudence of...

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