News Release

NCD #03-407
March 19, 2003
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY
mquigley@ncd.gov

National Council on Disability Addresses Supreme Court's Americans with Disabilities Act Decisions and Per Se Disabilities

WASHINGTON-The National Council on Disability (NCD) today released a policy brief, The Supreme Court ' s ADA Decisions and Per Se Disabilities, analyzing and responding to the Supreme Court ' s decisions in cases involving the Americans with Disabilities Act (ADA) and per se disabilities (http://www.ncd.gov/newsroom/publications/persedisabilities.html).

Unlike many of the other topics addressed in NCD ' s Righting the ADA series, the Supreme Court of the United States has not made any dramatic changes to the state of the law regarding the basic concept of what the Court has called " per se disabilities. " Yet, the Court ' s ADA decisions have changed the legal perspective on the application of this concept. This policy brief examines the meaning and significance of the per se disabilities concept, what the Supreme Court has said about it, and the implications of the Court ' s declarations.

Designation of a condition as a per se disability amounts to a recognition that, by its nature, a particular condition always substantially limits at least one major life activity. Such a designation would be of considerable practical value for ADA claimants having the condition. The Supreme Court decisions relating to per se disability have endorsed the concept but have not granted such status to any specific impairments. In addition, the Court ' s rulings on mitigating measures have narrowed the pool of potential per se disability candidates. In the absence of the Supreme Court having named any conditions as meriting such designation, the lower courts have been reluctant to rule conditions to be per se disabilities. Some likely potential contenders for per se status, based upon ADA committee reports and regulatory commentary are paraplegia, deafness, hearing loss (hard of hearing), lung disease, blindness, mental retardation, and alcoholism. Because of possible negative inferences about conditions not included in any list of conditions accorded per se disability status and other potential drawbacks, any denomination of conditions for such status should be undertaken only with caution, and in the context of adequate explanatory commentary to minimize negative repercussions.

NCD will address some limitations the Court has imposed on the remedies available in ADA cases and take a cross-issue look at the consequences of the Supreme Court ' s decisions by contrasting the state of the law before the decisions were rendered with the legal situation after the decisions, to identify undesirable and unjust outcomes in the decisions of the lower courts as a result of the Supreme Court ' s rulings.

NCD will then develop legislative proposals for addressing those issues that appear appropriate for legislative correction, and present those proposals, along with pertinent supportive material from the previous papers in this series in a final, comprehensive report entitled Righting the ADA.