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

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

The ADA's popular title suggests that it provides benefits and protections to all disabled Americans, and its language is sufficiently broad that it may be interpreted to that end. This Comment urges courts and lawmakers to revisit the holdings of significant ADA decisions in order to restore the ADA's original breadth, thereby ensuring protection for the cognitively disabled in the employment sphere. Failure to extend the ADA's coverage to the cognitively disabled is to deny them the civil rights that Congress intended to grant them.21

II. the ADA'S coverage according to its language

Before the reader can appreciate the significance of the courts' narrowing of the ADA, he or she must first have an understanding of the goals and results Congress sought in enacting the ADA. To that end, the following subsections summarize the ADA's eligibility requirements and protections, the EEOC's interpretive regulations, and pertinent aspects of the ADA's legislative history. This Part concludes with an examination of the Supreme Court's decision in Albertson's, Inc. v. Kirkingburg?1 an example of the Court construing the ADA in keeping with Congress's intent.

A. The ADA's Statutory Framework

1. Qualification

The ADA protects disabled persons but only those that are "disabled" as defined in the ADA.23 Thus, a person with a medically diagnosed disability must nonetheless fit within the ADA's definition of "disability" in order to qualify for protection.24 The ADA recognizes an individual as "disabled" if (1) the individual has "a physical or mental impairment that substantially limits one or more of [his or her] major life activities,"25 (2) the individual has "a record of such an impairment,"26 or (3) the individual has been "regarded as having such an impairment."27 This Comment focuses on the first of these three.

In addition to having a disability within the ADA's meaning, a disabled person seeking protection in the employment sphere must be a "qualified individual."28 A "qualified individual with a disability" is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."29 While not conclusive proof of an employment position's essential functions, the ADA generally defers to the employer's judgment as to what job functions are essential, and any written description prepared by the employer before advertising or interviewing job applicants, qualifies as evidence of the job's essential functions.30

Disabled individuals capable of performing the essential functions of the job they hold or desire are eligible for ADA protection.31 The ADA protects these individuals from discrimination "in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."32 The ADA also requires employers to provide reasonable accommodation to their disabled employees.33

2. Remedies