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

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

Somewhat more complicated is the EEOC's definition of "substantially limits." According to the EEOC, a disability that is substantially limiting is one that makes a person "unable to perform a major life activity that the average person in the general population can perform,"52 or "significantly restricts] . . . the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity."53 In considering whether an individual is substantially limited in a major life activity, the EEOC sets forth the following factors as relevant: "(i) [t]he nature and severity of the impairment;"54 "(ii) [t]he duration or expected duration of the impairment;"55 and "(iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment."56

If the major life activity in question is "working," a person is substantially limited only if he or she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities."57 This inquiry also includes consideration of the geographical job search area,58 the number of jobs in the area similar to the person's former job for which he or she no longer qualifies because of disability (the "job class" aspect of the inquiry),59 and the number of jobs in the area dissimilar to the person's former job for which he or she no longer qualifies because of disability (the "broad range of jobs" aspect of the inquiry).60 "Working," however, is only available to establish disability under the ADA where "an individual is not substantially limited with respect to any other major life activity."61

The EEOC explains that "whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual."62 Because the "disability" determination turns on the extent to which a person's impairment affects a major life activity, courts apply these standards on a case-by-case basis.63

The EEOC regulations are interpretive in nature and do not bind courts to a narrow or restrictive interpretation of the ADA. Regarding "disability" specifically, the regulations simply provide lists and considerations for courts called upon to make the case-by-case determination.64 Thus, the ADA itself and the EEOC's regulations allow courts to apply a generous, inclusive understanding of disability.65 The fact that courts are not so generous suggests a misunderstanding of the remedial aims of the statute,66 as the next subpart makes clear.

C. The Legislative History Behind the ADA

Before proceeding to criticize courts for their restrictive interpretation of the ADA, it is important to establish that such interpretation is, in fact, contrary to Congress's intent. Besides its facially broad-and therefore arguably inclusive-language regarding "disability," the ADA's legislative history reveals Congress's remedial intent. Research into the ADA's legislative history reveals that Congress heard extensive testimony on the pitiable plight of the disabled.67 In response to testimony on disabled persons in the workplace and their potential to contribute if given protections and accommodations, the House Report states, consistent with the ADA as enacted, that "the ADA is to ... bring persons with disabilities into the economic and social mainstream of American life."68 The report repeatedly revisits this theme.69