BY JAMES WEISMAN

Even before its passage, the Americans with Disabilities Act raised the expectations of people with disabilities. The prospect of equal opportunity, access, and a legal as well as moral responsibility for employers, government and proprietors of places of public accommodation to make reasonable accommodations lifted spirits in anticipation of the America that would be. Perhaps the ADA’s biggest contribution to enhancing the lifestyles of people with disabilities was the creation of a collective consciousness among people with disabilities about their rights. A secondary benefit that was somewhat slower in coming (and some complain it has not yet arrived) is the collective consciousness among people without disabilities of the needs and rights of those with disabilities.

Litigation victories are numerous, as are significant defeats, but the law instantly became, and still is, a guide for how right-thinking people should consider disability issues and treat people with disabilities.

The most controversial portions of the ADA — when it was being considered by Congress — did not become the most controversial part of the law after enactment. Looking backwards 25 years after the ADA’s passage, the most controversial section of the act turned out to be the definition of “disability,” something the Congress hardly discussed.

Early congressional consideration included such mind-boggling discussions as should homosexuals and people with sexual identity disorders be protected by the Act (they were specifically excluded); should food handlers who were HIV-positive be excluded from coverage (they were not); should buses be required to be accessible (they were); and should people with mental disabilities, both intellectual and psychological, be protected (they were). These subjects and several others, equally not controversial in retrospect, did not generate much litigation after enactment.

The definition of disability, however, which was borrowed from the Rehabilitation Act of 1973, was misinterpreted by the U.S. Supreme Court and used to unfairly deny a judicial remedy to people with disabilities discriminated against because of their disabilities.

The First Legal Disaster

The Supreme Court’s first attempt to deal with the definition was a disaster. However, since the disabled plaintiff prevailed, it wasn’t immediately alarming. In the 1998 case, Abbott v. Bragdon, an HIV-positive woman in Maine sought dental treatment. When the dentist learned of her condition, fearing for his and his staff’s safety, he sent her away. The evidence in the case indicated that danger was not probable if standard precautionary measures (eye shield, gloves and mask) were used. If she posed a danger to herself or others — that is, if danger were probable not merely possible — the dentist would have prevailed. In Abbott the Court considered whether the plaintiff was disabled as defined by the ADA, because if she wasn’t, she couldn’t sue the dentist. The ADA defined a covered disability as a physical or mental impairment that substantially limits one or more major life activities, a history of having such an impairment, or being regarded as having such an impairment.

The Court ignored the “regarded as” part of the definition and decided to wedge the plaintiff into the functional limitation portion of the definition. They found her disability to be the inability to procreate, ignoring both the reality that those with HIV can have children and that the dentist clearly regarded the plaintiff as having a disability and treated her accordingly, whether or not she was substantially limited from life activities at all.

Catch 22: Disability Nonexistent When Temporarily Corrected  

Misunderstanding the three prongs of the “who is covered by the act” provisions of ADA began with Abbott but was personified in the Sutton trilogy of cases decided by the Supreme Court together. In the 1999 case, Sutton v. United Airlines, twin sisters who were commercial pilots but wore eyeglasses applied for jobs with United Airlines. The airline had an employment policy that required their pilots to have better than 20/200 vision when not wearing glasses. Both pilots wore glasses and, when corrected, had normal vision. But no law or regulation required pilots to see better than 20/200 without their glasses — the policy was strictly the airline’s. The women were denied employment by United Airlines, and the Court held that disability must be considered in its mitigated state. The women were not disabled within the meaning of the ADA, according to the Court, because when mitigated, their low vision was eliminated — with glasses they saw normally. Therefore, the Court held that they were not disabled and could not sue the airline even though they were denied employment because of their low vision.

On the same day in Murphy v. United Parcel Service, and Albertsons v. Kirkingburg, the Court denied relief to an individual whose high blood pressure was normal because he took medication for it — even though he was denied employment because of his high blood pressure; and the Court also denied relief to an individual denied employment as a truck driver because he only had vision in one eye. The Court found that his monocular vision was not a disability since it didn’t substantially limit his ability to engage in a major life activity.

This complete disregard of the “regarded as” prong of the test for who is protected by the ADA spawned dismissals of hundreds of employment discrimination claims throughout the United States. People with epilepsy whose seizures were controlled by medication but who were discriminated against because of the epilepsy had no remedy; diabetics whose symptoms were controlled by insulin were denied remedies even though they were discriminated against because they were diabetic. In one case, a diabetic pharmacist who needed reasonable accommodation — the ability to eat lunch at the same time every day to regulate his blood sugar — was denied that accommodation. The Court, incredibly, found that he was not disabled within the meaning of the ADA because if he ate at the same time every day — that is, if his disability was considered in its mitigated state — he would have no functional impairment.

ADA Amendments Act of 2008 and Olmstead

Consideration of disability in its mitigated state became a hurdle that defendants put between those they discriminated against and the plaintiffs’ ability to seek relief. Since this was clearly not Congress’s intent in enacting the law, organizations of people with disabilities asked Congress to amend the ADA in a manner that would specifically nullify the Sutton trilogy. Despite the risk that Congress might attempt to weaken the ADA once the Act was being reconsidered, the disability community pushed forward, and with the help of Republican Rep. Jim Sensenbrenner of Wisconsin and Democratic Sen. Tom Harkin of Iowa, the ADA  Amendments Act of 2008 passed. It instructed the courts to disregard Sutton and its mitigation language and restored the “regarded as having a disability” basis for claiming discrimination.

Meanwhile, legislative and litigation victories and advances fostered more litigation as well as state legislation to prevent and redress discrimination. Many cases were brought and settled, not resulting in judicial decisions that could be used by others as precedents, but clearly reflecting changing social mores. For example, United Spinal Association sued New York City for failure to install curb ramps. Following seven years of litigation with the Giuliani administration, Mayor Bloomberg settled the case. The city has spent $243 million so far to ramp its 168,000 corners and all but 3 percent are complete. United Spinal and other plaintiffs with disabilities persevered and finally forced Mayor Bloomberg to settle ADA litigation to make taxis accessible. After 11 years of opposing accessible taxis, prompted by ADA litigation, Bloomberg agreed to have 50 percent of the City’s yellow cabs accessible by 2020.

The Supreme Court’s 1999 decision in Olmstead v. L.C. will have lasting significance. In Olmstead, the court required states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs. This decision is important, not just because it outlaws institutionalizing most people with mental disabilities and requires that they live and receive services in the community. Olmstead has also become a guide for state governments to ensure inclusion of people with disabilities in state-sponsored programs and a litigation tool to be used against state governments when those with disabilities are segregated, excluded from or isolated by state and local government activity.

The Big Picture: ADA Changes Behavior

From a jurisprudential point of view, the ADA changed the meaning ascribed traditionally to “nondiscrimination.” Prior to ADA nondiscrimination was passive. Refraining from treating people differently because of their race, gender, religion, etc., and treating everyone equally was all that was necessary to guarantee compliance and socially correct behavior. ADA made the failure to act — that is, to make reasonable accommodation — discriminatory and unlawful.

However, the ADA, while requiring accommodation, only does so to the extent that such accommodation is reasonable. The ADA merely requires reasonable behavior — and that is its simple beauty.