Playing with work: must "work" be treated as a "major life activity" for purposes of the Americans with Disabilities Act?

• Author: McMillan, Daniel A.

INTRODUCTION

In two recent decisions, Sutton v. United Airlines, Inc., (1) and Toyota Motor Manufacturing, Kentucky v. Williams, (2) the Supreme Court sharply limited the reach of the Americans with Disabilities Act of 1990 ("ADA" or "the Act"), (3) by narrowing the definition of "disability" under the Act. (4) In both cases the Court also signaled that it may further narrow the definition of a disabled person, by excluding from this definition all persons whose infirmities interfere with only their ability to work, and not, for example, with their ability to travel or socialize. Under the ADA, a "disability" is defined, in pertinent part, as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." (5) Under current agency regulations and case law in the lower courts, "work" or "working" is considered a "major life activity" for the purposes of the ADA's disability definition. (6) The Supreme Court, however, has never held that work qualifies as a major life activity, and the Court has signaled in Sutton and Toyota that it may hold that it does not. (7) If the Court does so hold, the social and economic impact could be devastating, leaving several million Americans unable to claim the Act's protection against discrimination in the workplace.

This Note examines and evaluates the principal arguments for and against construing the ADA to include work among the major life activities. (8) Part I briefly discusses the history of the ADA and the definition of disability under the Act as explicated in regulations by executive branch agencies. A discussion follows of the Sutton and Toyota decisions and their implications for the status of work as a major life activity under the Act. Part II critiques the Court's reasoning in Sutton and Toyota, and then looks to two other sources for guidance in construing the Act: the language of the Act itself and congressional intent to the extent that this intent is documented in the legislative history. Part III weighs the opposing arguments and arrives at a resolution. This Note concludes that the ADA must be construed to include work as a major life activity, because any other construction would contradict both the plain language of the statute and the clear intent of Congress.

1. BACKGROUND AND Issue

   1. History of the ADA

      The developments that led to the passage of the Americans with Disabilities Act originated in part in the civil rights struggles of the 1960s. (9) Inspired by the victories of African Americans and other groups, a movement of the disabled developed in the 1970s using many of the same tactics pioneered by these oppressed groups, including public demonstrations, civil disobedience, and lawsuits. (10) Advocates for the disabled also pressed for federal legislation proscribing discrimination against disabled individuals. Between 1973 and 1990, Congress passed several laws against such discrimination, of which the most important was the Rehabilitation Act of 1973. (11) Almost all of these laws limited their coverage to activities conducted by the federal government, or to those supported at least in part by federal funds. (12)

      Disability issues gained a higher public profile in the 1980s, as seen most obviously in the work of a Presidential commission, the National Council on the Handicapped (since renamed the National Council on Disability). Two reports by the Council, issued in 1986 (13) and 1988, (14) respectively, assessed the bleak condition of disabled Americans, and called for comprehensive legislation to combat discrimination against the disabled. (15) The second report, issued in 1988, included a draft of the legislation which later became the ADA, (16) and bills were introduced in both houses of Congress later that year. (17) The 100th Congress adjourned without either house taking action on the bill, (18) but a revised version was introduced in both houses the following year. (19) After separate House and Senate versions were reconciled in conference committee, (20) the Americans with Disabilities Act passed in both houses by the lopsided margins of 377 to 28 in the House, on July 12, 1990, and 91 to 6 in the Senate, on July 13. (21)

      Throughout the Congressional deliberations leading to the passage of the ADA, two themes predominated. Members of Congress and the reports of the standing committees hailed the ADA as a landmark civil rights law, a long overdue companion piece to the Civil Rights Act of 1964. (22) The Congress also presented the ADA as an employment bill, declaring that discriminatory exclusion from the workplace inflicted the greatest injuries suffered by the disabled, while depriving the nation of badly needed labor, and burdening the public treasury with billions of dollars every year in support payments. (23) The Act's greatest significance, however, probably lay in the extent of its coverage. Almost all previous disability discrimination bills covered only activities funded by the federal government. (24) The ADA, in contrast, covers the private sector, as well as state and local governments. (25)

   2. The ADA's Provisions

      The Americans with Disabilities Act defines a category of disabled individuals, and protects them from discrimination in employment, (26) in access to services, including transportation provided by public entities, (27) in access to services and public accommodations provided by private entities, (28) and in access to telecommunications. (29) Access to public buildings, workplaces, and services is frequently mandated in the form of architectural and technological standards, for example, wheelchair ramps or amplified telephone transmission for the hearing-impaired that remove impediments to access. (30) In the workplace, a disabled individual, if otherwise qualified for employment, is entitled to "reasonable accommodations" from her employer in the job application process, in access to employee benefits, and in the actual process of work. (31) For example, an employer could allow a blind employee to bring a guide dog to work.

      The ADA's definition of "disability" originated in a 1974 amendment to the Rehabilitation Act of 1973, (32) and reads as follows:

      The term 'disability' means, with respect to an individual--

   1. a physical or mental impairment that substantially limits one or more of the major life activities of such individual:

   2. a record of such an impairment; or

   3. being regarded as having such an impairment. (33)

      The Act itself does not define "major life activity." The Rehabilitation Act, however, authorized the Department of Health, Education and Welfare (HEW) to issue regulations implementing Title V of that Act, and these regulations established what has become the basic, (34) though by no means exhaustive, (35) list of major life activities under the Rehabilitation Act and the ADA. According to the HEW regulations, "'Major life activities' means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, learning, and working." (36)

      Substantially the same list of major life activities, in each case including work, appears in the regulations issued by the three agencies charged with the principal responsibility for implementing the varied titles of the ADA: the Equal Employment Opportunity Commission (EEOC), (37) the Department of Justice, (38) and the Department of Transportation. (39) The ADA did not, however, explicitly grant authority to any of these agencies to issue regulations implementing the generally applicable provisions of the Act, for example the definition of disability. Instead, the ADA charges each agency with issuing regulations to implement specific Titles of the Act, for example, the EEOC for Title I (private-sector employment). (40) Consequently, the Supreme Court has held that no agency has been delegated authority under the ADA to define "disability," and the Court has declined to consider "what deference [these regulations] are due, if any." (41)

   3. The Supreme Court's Doubts About Work as a Major Life Activity

      In Sutton, Justice O'Connor explained that because the parties accepted that the term "major life activities" included working, the Court did not reach the question of whether it did. (42)

      We note, however, that there may be some conceptual difficulty in defining "major life activities" to include work, for it seems "to argue in a circle to say that if one is excluded, for instance, by reason of [an impairment, from working with others] ... then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap. (43) Here, Justice O'Connor quotes from the Solicitor General's oral argument in School Board v. Arline (1987). (44) I will return below to the argument that making work a "major life activity" rests on circular reasoning. (45) Readers who find it difficult to understand the above quoted passage should not assume that the problem lies with them. The Court's 2002 opinion in Toyota likewise alluded to this problem in dictum: "Because of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much, and we need not decide this difficult question today. " (46)

      The Sutton court also stated that "even the EEOC has expressed reluctance to define 'major life activities' to include working and has suggested that working be viewed as a residual life activity, considered, as a last resort, 'if an individual is not substantially limited with respect to any other major life activity' only." (47)

      The Court's unanimous decision in Toyota also undermined the status of work as a major life activity by establishing a new and more stringent test (48) for determining what constitutes a major life activity under the ADA. After several years of working at the Toyota plant in Georgetown, Kentucky, Ella Williams developed severe carpal tunnel...