Disabled ADA: How a Narrowing ADA Threatens To Exclude the Cognitively Disabled, The

Brigham Young University Law Review, 2006 by Catchpole, Nathan, Miller, Aaron

I. INTRODUCTION

Congress, in the Americans with Disabilities Act of 1990(1) (ADA), found that upwards of forty-three million Americans have one or more physical or mental disabilities.2 More current United States Census Bureau estimates put that number at 49.7 million.3 Included among those disabled are 12.4 million cognitively disabled Americans who suffer from conditions that impair their ability to learn, remember, or concentrate.4 This Comment contends that, because courts have narrowly interpreted the ADA's coverage provisions since its enactment, these 12.4 million cognitively disabled Americans are perilously close to being altogether denied ADA protection-a result that, notwithstanding the ADA's awkward coverage provisions, Congress never intended.

Congress found that the disabled persistently "encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities."5 In the face of these and other distressing facts regarding the plight of disabled Americans,6 Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."7 The ADA guarantees "broad antidiscrimination protection for disabled individuals-defined as those having physical or mental impairments that substantially limit one or more major life activities."8 Such broad protection for a historically ignored class of persons positions the ADA, arguably, as "the most significant civil rights legislation since the mid-1960s."9 Or at least it should be.

If the ADA is something less than the most significant civil rights legislation since the mid-1960s, it is largely due to the phenomenon of what has been called "the incredible shrinking protected class."10 This phrase aptly describes the evolution of the ADA's coverage since its enactment. Courts, in their apparent zeal to define a manageable protected class, have restrictively interpreted the ADA's broad, but often ambiguous, terms to the extent that they "have effectively steered the analytical focus away from the ADA's original aim of aiding disadvantaged individuals' integration into the job market . . . to the point where [the ADA] is in danger of becoming ineffective."11

This Comment contends that the day of ADA ineffectiveness may have come for the cognitively disabled, surreptitiously ushered in through decisions such as Button v. United Air Lines, Inc.12 and Toyota Motor Manufacturing v. Williams.13 These decisions, by narrowly defining who qualifies as "disabled," exemplify courts' unarticulated, but noticeable, inclination to restrictively interpret the ADA. This inclination portends serious consequences for the cognitively disabled, who are at once able to perform employment tasks but sufficiently disabled to be at a performance disadvantage in their employment.14 As will be later discussed, this status as the "too-able disabled" makes it difficult for the cognitively disabled to fit within the ADA's nearly unworkable coverage zone, a fit made even more difficult by restrictive judicial interpretations.15 Indeed, the result of these restrictive interpretations could be to deprive the cognitively disabled, who have courageously taken steps to mitigate the limiting effects of their disability, of both reasonable accommodation in the workplace and legal recourse under the ADA should they be terminated because of their disability.16 This is a result Congress never intended.17

Part II of this Comment reviews the plain language, interpretive regulations, and legislative history of the ADA in order to establish the intended bounds of its coverage. Part II also makes clear that the ADA, even with its clumsy coverage provisions, is, on its face, sufficiently broad, if generously interpreted, to cover the cognitively disabled. It also suggests that "substantial limitation"-a key ADA coverage term that has heretofore been interpreted to disabled persons' detriment-is more appropriately conceptualized as a coverage "floor" than as a coverage "high bar."

Part III surveys ADA jurisprudence to reveal courts' apparent proclivity for narrowing the ADA's coverage. Part III is less concerned with the cases' dispositive holdings as applied to particular facts and more concerned with the underlying inclination those holdings suggest. Specifically, Part III examines the corrective measures requirements of Suttonla and the substantial-as-severe limitation threshold of Toyota19 as evidence that courts tend to favor a narrow ADA and have employed debatable legal interpretations to accomplish this objective.

Part IV illustrates the real consequences of this narrowing trend by considering the potential effects of the courts' narrowing efforts on the cognitively disabled specifically. As explained in Part IV, the cognitively disabled have a legitimate claim on ADA protection pursuant to the ADA's remedial purposes but are in jeopardy of being denied that protection as the courts persist in elevating the ADA's coverage threshold, most notably in the area of "substantial limitation."20 Part IV also proposes, as part of a broader policy discussion, an alternative reading of "substantial limitation" that more faithfully adheres to Congress's intent. Part V offers a brief conclusion.