The mythic 43 million Americans with disabilities.

• Author: Colker, Ruth

ABSTRACT

Although Congress stated in its first statutory finding that it intended the Americans with Disabilities Act (ADA) to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, this Article demonstrates through the use of Census Bureau data that the ADA's employment discrimination provisions have been eviscerated to the point that the ADA protects virtually no Americans who are both disabled and able to work.

This Article places that problem in the larger context of the Court undermining Congress's efforts to protect discrete and insular minorities from employment discrimination. Although Congress has sometimes responded to that hostility by enacting "restoration legislation," this Article argues that such restoration efforts should be unnecessary. The Court should correct its errors and engage in a respectful relationship with Congress so that Congress can move on to new items on its legislative agenda rather than revisit prior items.

INTRODUCTION I. ONCE SHOULD BE ENOUGH A. Congress's Reconstruction Efforts B. Resurrection of the Civil Rights Canon 1. The Rise and the Demise of the Civil Rights Canon 2. Particular Applicability of the Civil Rights Canon to the ADA II. DERIVATION OF THE 43 MILLION FIGURE A. Social Security Laws B. The 43 Million Figure III. SUPREME COURT CASES DEFINING "DISABILITY" UNDER SUBSECTION (A) A. Sutton v. United Air Lines, Inc B. Albertson's, Inc. v. Kirkingburg C. Murphy v. United Parcel Service D. The Statistical Significance Solution IV. REGARDED AS DISABLED A. Sutton & Murphy B. Post-Sutton Case Law C. Further Retrenchment: Toyota Decision CONCLUSION INTRODUCTION

In recent years, the Supreme Court has narrowly interpreted the scope of protection (1) provided under federal civil rights law while also increasingly disavowing the usefulness of legislative history to interpret these statutes. (2) Left only with the legislative text, the Court has imposed an interpretation on these statutes that can only be described as "dissing Congress," (3) because it flouts both the statutory language and congressional intent as reflected in the legislative history. Hence, the civil rights community has had to persuade Congress to enact key civil rights legislation twice--first as a pathbreaking statute, and then again as a "restoration act" (4)--to attain the intended scope of statutory protection. (5)

The Americans with Disabilities Act (ADA) (6) has been a victim of this problem. When Congress enacted the ADA in 1990, it adopted an "anti-subordination" model (7) under which it protected a class of individuals it concluded had faced a history of discrimination. (8) The statute provided that only those who met the definition of "disability" (9) attained protection, that reasonable accommodations would be available to such individuals, (10) and that "reverse" discrimination lawsuits would not be permitted. (11) This approach stood in contrast to an anti-differentiation approach, under which anyone in society would have a cause of action if she demonstrated different treatment on the basis of a physical or mental condition irrespective of whether that condition fit her within a category of people who had historically faced discrimination. (12)

In addition, Congress carefully structured the ADA around three titles that would address the major areas in which a history of disability discrimination existed: the workplace, (13) the public sector, (14) and accommodations open to the public. (15) Its statutory findings paralleled this approach by indicating that a history of discrimination existed "in such critical areas as employment, housing, [and] public accommodations." (16) By listing "employment" first in its description of "critical areas," and by addressing the problem of employment discrimination in the first title of the ADA, Congress clearly marked redressing employment discrimination as one of its top priorities. Finally, Congress's last finding highlighted the importance of improving employment opportunities for individuals with disabilities when it identified the goal of "economic self-sufficiency" for individuals with disabilities. (17) In drafting the ADA, Congress could not have been clearer in endorsing an anti-subordination approach and expressing the conviction that this approach would help redress the historical problem of employment discrimination in our society against individuals with disabilities.

Unfortunately, the Supreme Court has historically been hostile to an anti-subordination perspective in the employment discrimination context. (18) Although the history underlying the enactment of Title VII of the Civil Rights Act of 1964 suggests that Congress intended to adopt an anti-subordination perspective to redress the historical problem of discrimination against racial minorities, (19) the Supreme Court has often interpreted this statute under an anti-differentiation approach by permitting "reverse" discrimination lawsuits and often prohibiting "affirmative action." (20) Similarly, the Court has undermined the ADA's anti-subordination approach by construing the term "disability" so narrowly that the statute is unable to provide meaningful protection to individuals with disabilities who face employment-related discrimination. Under the guise of the statutory tool of "plain meaning," the Court has transformed Congress's first finding--that it intends to cover at least 43 million Americans (21)--to mean that Congress intends to cover no more than 43 million Americans. In fact, the approach chosen by the Court only results in about 13.5 million Americans receiving statutory coverage, with those individuals typically being so disabled that they are not qualified to work even with reasonable accommodations. (22) This narrow interpretation, which contradicts the plain statutory language of the ADA, essentially erases the statute's employment discrimination provisions. (23)

When the Supreme Court has resisted an anti-subordination approach, Congress has often responded by amending the relevant civil rights statute to restate its anti-subordination perspective. (24) Although one might argue that in many instances such give and take between the judicial and legislative branches is appropriate due to ambiguous statutory language, (25) in this case such an argument would not apply; the ADA could not be clearer. Its findings, its overall structure, and its statutory language follow an anti-subordination approach that is consistent with a "protected class" model and highlights the importance of redressing a history of disability-based discrimination in the workplace for this protected class.

Although a "restoration act" has been introduced in Congress to correct the Court's interpretation of the term "disability," (26) such legislative action should be unnecessary. The Supreme Court should correct the error itself and allow Congress to devote its time to considering other legislative matters. In fact, the Supreme Court should apply the "civil rights canon" (27) to interpret the ADA consistently with its remedial anti-subordination perspective, thereby offering protection for individuals with disabilities who need workplace protection. In the instances when the Court did interpret other civil rights statutes consistently with an anti-subordination approach, the civil rights canon was an important interpretive tool that helped the Court attain that scope of protection. (28) In its proposed revision to the ADA, Congress has stated that the courts should employ the civil rights canon when interpreting the ADA. (29) The civil rights canon should go hand in hand with Congress's remedial purpose in enacting the ADA.

When Congress decided to adopt a "protected class" anti-subordination approach under the ADA, it had to make several important, fundamental decisions: Who did it want to protect under this protected class model? Did it want to cover only individuals with severe disabilities who are too disabled to work but who would benefit from curb cuts and other societal accommodations? Or did it also want to cover individuals with mild disabilities who, with or without accommodations, might be able to secure and maintain employment? Fortunately, the statutory language answered that question by setting 43 million as the floor rather than as the ceiling, and by specifying that a basic intention of the statute was to redress the historical problem of employment discrimination. (30) Yet the Court's interpretation of the ADA has made it an extension of the Social Security laws for the severely disabled rather than a workplace protection act for the mildly disabled. As will be discussed in Part II, the Census Bureau drew a distinction between those with severe and mild disabilities, as had the Social Security Administration. (31) Aware of that distinction, Congress explicitly chose to protect both those with mild and severe disabilities. Yet the Court has interpreted the ADA as if Congress chose only to protect those with severe disabilities.

Under the ADA, Congress chose a definition of disability similar to the one used by the Census Bureau, (32) which includes individuals with both mild and severe disabilities, (33) to arrive at the 43 million figure. (34) The Census Bureau estimated in 2002 that more than 51 million Americans have mild disabilities that impose functional limitations on their lives. (35) Today, one would thus expect the ADA's definition of disability to cover at least 50 million Americans, including the nearly 30 million who the Census Bureau found are mildly disabled and able to work. Although Congress justified its enactment of the ADA with the hope that the statute would improve the employment opportunities of individuals with disabilities, (36) the data suggest that the ADA has had no positive effect on those opportunities. (37)...