Feature Article

NCD #99-271
June 28, 1999
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY
mquigley@ncd.gov

Toward an Inclusive Definition of Disability by Andrew J. Imparato, General Counsel and Director of Policy, National Council on Disability

As an attorney who has spent my career working to promote policies and laws that expand opportunities for the 54 million Americans with disabilities, I am deeply concerned that the U.S. Supreme Court totally missed the mark last week in three cases construing the definition of "disability" in the Americans with Disabilities Act (ADA). The Supreme Court has left me and millions of other Americans with significant mental or physical impairments unprotected against egregious discrimination.

The three cases involved people with poor uncorrected vision, monocular vision, and hypertension who were challenging discriminatory employer policies that unfairly excluded them based on their impairments. In deciding that these people fall outside the civil rights protections of ADA because their conditions are correctable, our highest court has left many people with treatable conditions like epilepsy, diabetes, and, in my case, bipolar disorder, outside of the law's protection as well. Anyone who is functioning well with their disability is now at risk of losing civil rights protections as a result of the Supreme Court's "miserly" construction, to use Justice Stevens' characterization in his eloquent dissent.

People with hidden disabilities often are unable to predict how an employer, coworker, friend, or colleague will react when they learn of the disability. In my case, I have had a wide range of experiences when I self-identify as a person with bipolar disorder or manic-depressive illness. Some people assume that it is something I had in the past and that I am "better." Some worry that I might "go postal" and treat me with kid gloves. One interviewer raised an unfounded concern about whether I would know how to conduct myself appropriately at staff meetings.

My own experience confirms for me that fears, myths, and stereotypes about people with disabilities are alive and well in the United States. Congress enacted ADA in 1990 to address this country's sad history of excluding, paternalistic, degrading treatment of our citizens with disabilities. In its role of advisor to the President and the Congress on public policy issues affecting people with disabilities, my employer, the National Council on Disability (NCD), drafted ADA to address the many forms of discrimination that occur for people with a wide variety of disabilities.

One of the core findings in ADA is that "disability is a natural part of the human experience." This is a powerful statement. "Disability" should not be interpreted by the Supreme Court to exclude the many people whose conditions in their natural state result in significant impairments in functioning but who can function well with medication, assistive devices, or other mitigating measures. The people who would be left out nonetheless will continue to encounter bigotry and attitudinal barriers when we are turned down for jobs or are passed over for promotions.

ADA is about equal opportunity, full participation, equal access. It is not about hand-outs or special privileges for a select few. An inclusive definition of disability means extending a good thing--fairness--to more people. A narrow definition of disability for ADA means that civil rights will be "doled out" to the "deserving few."

Under the decisions last week, people bringing ADA claims will need to emphasize the negative about their impairment and how it affects them, as if they were applying for disability retirement benefits. The evidence they submit to demonstrate their disability can and will be used against them when they seek to demonstrate their qualifications for the position they are seeking. This puts people in a Catch-22 situation that Congress never intended.

When Congress defined disability in ADA, they intentionally used the inclusive, flexible definition that has been in place for many years under the Rehabilitation Act. The ADA definition includes not just people with physical or mental impairments that substantially limit at least one major life activity, but also people with a history of such impairments, and people who are regarded by others as having such impairments.

If Congress wanted to limit coverage to people in wheelchairs, blind people, and deaf people, they certainly could have. Instead, Congress followed the advice of NCD and others and incorporated an inclusive definition of the protected class that would reach the many and varied ways that fears, myths, and stereotypes come into play to unfairly limit people based on their physical or mental conditions as opposed to their work experience and proven abilities.

ADA should be read to protect anyone who is treated unfairly because of their physical or mental impairment. Because the Supreme Court decided otherwise, equal justice for all now rings hollow for millions of Americans with disabilities.