Righting the ADA

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	Righting the ADA National Council on Disability 1331 F Street, NW, Suite 850 Washington, DC 20004 202-272-2004 Voice 202-272-2074 TTY 202-272-2022 Fax This report is also available in alternative formats and on the award-winning National Council on Disability (NCD) Web site (www.ncd.gov). Publication date: December 1, 2004 The views contained in this report do not necessarily represent those of the Administration as this and all NCD documents are not subject to the A-19 Executive Branch review process. NATIONAL COUNCIL ON DISABILITY An independent federal agency working with the President and Congress to increase the inclusion, independence, and empowerment of all Americans with disabilities. December 1, 2004 The President The White House Washington, DC 20500 Dear Mr. President: The National Council on Disability (NCD) is charged with gathering information about the implementation, effectiveness, and impact of the Americans with Disabilities Act (ADA). In keeping with this requirement, I submit this new report, entitled Righting the ADA . Over the past two years, NCD conducted an in-depth analysis of the Supreme Court’s interpretations of the ADA . NCD has determined that, while some of the Court’s decisions have clearly liberated people with disabilities, e.g., Tennessee v. Lane, Martin v. PGA Tours, and Olmstead v. L.C., several of the Court’s rulings involving the ADA depart from the core principles and objectives of the ADA . In the enclosed report, NCD provides an analysis of the problematic rulings, describes the resulting impact on people with disabilities, and offers legislative proposals designed to restore the ADA to its original intent. The purpose of the ADA was “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The provisions of the ADA addressing architectural, transportation, and communication accessibility have changed the face of American society in numerous concrete ways, enhancing the independence, full participation, inclusion, and equality of opportunity for Americans with disabilities. However, the provisions of the ADA that have been narrowed by Court rulings currently do not provide the same scope of opportunities and protections expressed by those involved in the creation and passage of the ADA. Legislation is urgently needed to restore the ADA to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for Americans with disabilities. NCD asks the Administration and Congress to support legislation that will “right” the course of the ADA and protect the civil rights of people with disabilities. NCD stands ready to work with the Administration, Congress, and the public to shape our laws and public policy in a manner that achieves the promise of the ADA for all Americans—the elimination of disability-based discrimination in all aspects of society. Sincerely, Lex Frieden Chairperson National Council on Disability (The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the U.S. House of Representatives.) 1331 F Street, NW • Suite 850 • Washington, DC 20004 202-272-2004 Voice • 202-272-2074 TTY • 202-272-2022 Fax • www.ncd.gov National Council on Disability Members and Staff Members Lex Frieden, Chairperson, Texas Patricia Pound, First Vice Chairperson, Texas Glenn Anderson, Ph.D., Second Vice Chairperson, Arkansas Milton Aponte, J.D., Florida Robert R. Davila, Ph.D., New York Barbara Gillcrist, New Mexico Graham Hill, Virginia Joel I. Kahn, Ph.D., Ohio Young Woo Kang, Ph.D., Indiana Kathleen Martinez, California Carol Novak, Florida Anne M. Rader, New York Marco Rodriguez, California David Wenzel, Pennsylvania Linda Wetters, Ohio Staff Ethel D. Briggs, Executive Director Jeffrey T. Rosen, General Counsel and Director of Policy Mark S. Quigley, Director of Communications Allan W. Holland, Chief Financial Officer Julie Carroll, Attorney Advisor Joan M. Durocher, Attorney Advisor Martin Gould, Ed.D., Senior Research Specialist Geraldine Drake Hawkins, Ph.D., Program Analyst Pamela O’Leary, Interpreter Brenda Bratton, Executive Assistant Stacey S. Brown, Staff Assistant Carla Nelson, Office Automation Cler Acknowledgement The National Council on Disability (NCD) wishes to express its appreciation to Professor Robert L. Burgdorf Jr. of the University of the District of Columbia, David A. Clarke School of Law, for drafting this report. Contents Executive Summary The ADA Restoration Act of 2004: Section-by-Section Summary The ADA Restoration Act of 2004: A Draft Bill Background & Overview Broad Bipartisan Support Backing by Subsequent Presidents Will of the People Impact of the ADA Judicial Resistance Problematic Interpretations of the ADA Surprising Problems with the Definition of Disability Specific Problems Created by the Supreme Court’s Decisions Regarding the Definition of Disability Issue: Consideration of Mitigating Measures in Determining Disability What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Substantial Limitation of a Major Life Activity What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Employment as a Major Life Activity What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: The “Class or Broad Range of Jobs” Standard What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: “Regarded As” Having a Disability What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Validity of and Deference to Be Accorded Federal Regulations Implementing the ADA ’s Definition of Disability What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Duration Limitation on What Constitutes a Disability What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Per Se Disabilities What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Restrictive Interpretation of the Definition of Disability to Create a Demanding Standard What the Supreme Court Did Significance of the Court's Action Examples of Impact Principles and Assumptions Regarding the Definition of Disability When the ADA Was Enacted That Have Been Disregarded or Contradicted by the Supreme Court Limitations on ADA Remedies Under Decisions of the Supreme Court Issue: Rejection of the “Catalyst Theory” in the Awarding of Attorney’s Fees and Litigation Costs What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Disallowance of Punitive Damages in Private Lawsuits Under Section 202 of the ADA What the Supreme Court Did Significance of the Court's Action Examples of Impact Safety Limitations Under ADA Decisions of the Supreme Court Issue: Acceptance of the EEOC Provision Allowing Employers to Exclude from a Job a Person with a Disability Who Would Pose a Direct Threat to His or Her Health What the Supreme Court Did Significance of the Court's Action Examples of Impact Limitations on Reasonable Accommodations Under Decisions of the Supreme Court Issue: Standard for Reasonableness of Reasonable Accommodations What the Supreme Court Did Significance of the Court's Action Examples of Impact Issue: Impact of Seniority Systems on Potential Accommodations What the Supreme Court Did Significance of the Court's Action Examples of Impact Getting the ADA Back on Track: Remedial Legislative Approaches The Definition of Disability Primary Recommended Approach to Repair the Definition of Disability-Back to Basics Proposed Statutory Revisions Purpose and Sources of the Proposed Language Addressing Specific Problematic Aspects of the Court’s Rulings Mitigating Measures Supportive Construction of Definition and Entire Act Regulations Interpreting the Definition and Clarifications The 43 Million Figure The "Discrete and Insular Minority" Finding Incorporation of a Social Model of Discrimination Effect on the Reasonable Accommodation Mandate Secondary Option for Repairing the Definition of Disability-Restoring the Section 504 Approach Specific Provisions Related Amendments Restoring Remedies Available Under the ADA Legislative Approaches to Safety Limitations Under the ADA Legislative Approaches to Limitations on Reasonable Accommodations Under Decisions of the Supreme Court Consolidating the Proposals-The ADA Restoration Act Matters Not Addressed in This Report Conclusion Appendix-Mission of the National Council on Disability Endnotes Executive Summary Many Americans with disabilities feel that a series of negative court decisions is reducing their status to that of “second-class citizens,” a status that the Americans with Disabilities Act (ADA) was supposed to remedy forever. In this report, the National Council on Disability (NCD), which first proposed the enactment of an ADA and developed the initial legislation, offers legislative proposals designed to get the ADA back on track. Like a boat that has been blown off course or tipped over on its side, the ADA needs to be “righted” so that it can accomplish the lofty and laudable objectives that led Congress to enact it. Since President George H.W. Bush signed the ADA into law in 1990, the Act has had a substantial impact. The Act has addressed and prohibited many forms of discrimination on the basis of disability, although implementation has been far from universal and much still remains to be done. In its role in interpreting the ADA , the judiciary has produced mixed results. Led by the U.S. Supreme Court, the courts have made some admirable rulings, giving effect to various provisions of the Act. Unfortunately, however, many ADA court decisions have not been so positive. This report addresses a series of Supreme Court decisions in which the Court has been out of step with the congressional, executive, and public consensus in support of ADA objectives, and has taken restrictive and antagonistic approaches toward the ADA , resulting in the diminished civil rights of people with disabilities. In response to the Court’s damaging decisions, this report seeks to document and explain the problems they create and advance legislative proposals to reverse their impact. NCD has developed more extensive and detailed analyses of these issues in a series of papers published under the title Policy Brief Series: Righting the ADA Papers. The papers can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. In an effort to return the ADA to its original course, this report offers a series of legislative proposals designed to do the following: (1) reinstate the scope of protection the Act affords, (2) restore certain previously available remedies to successful ADA claimants, and (3) repudiate or curtail certain inappropriate and harmful defenses that have been grafted onto the carefully crafted standards of the ADA. As this report was going to press, the Supreme Court issued its decision in the case of Tennessee v. Lane, in which the Court upheld provisions of Title II of the ADA, as applied, to create a right of access to the courts for individuals with disabilities. The Lane ruling certainly merits additional study, and NCD expects to issue future analyses of the decision and the questions it leaves open. This report does not attempt to address such issues. The body of the report at times discusses alternative legislative approaches to some of the problems it addresses. NCD has chosen, however, to consolidate its preferred solutions to the various problems into a single draft bill. The following represent the specific legislative proposals made by NCD at this time for “righting the ADA,” first described in a Section-by-Section Summary and then presented as a proposed “ADA Restoration Act of 2004.” The ADA Restoration Act of 2004: Section-by-Section Summary Section 1—Short Title This section provides that the law may be cited as The ADA Restoration Act of 2004 and conveys the essence of the proposal’s thrust, which is not to proffer some new, different rendition of the ADA but, rather, to return the Act to the track that Congress understood it would follow when it enacted the statute in 1990. The title echoes that of the Civil Rights Restoration Act of 1987, which was passed to respond to and undo the implications of a series of decisions by the Supreme Court, culminating in Grove City College v. Bell, which had taken a restrictive view of the phrase “program or activity” in defining the coverage of various civil rights laws applicable to recipients of federal financial assistance. As with that law, The ADA Restoration Act would “restore” the law to its original congressionally intended course. Section 2—Findings and Purposes Subsection (a) presents congressional findings explaining the reasons that an ADA Restoration Act is needed. It describes how certain decisions of the Supreme Court have weakened the ADA by narrowing the broad scope of protection afforded in the Act, eliminating or narrowing remedies available under the Act, and recognizing some unnecessary defenses that are inconsistent with the Act’s objectives. Subsection (b) provides a statement of the overall purposes of the ADA Restoration Act, centering on reinstating original congressional intent by restoring the broad scope of protection and the remedies available under the ADA, and negating certain inappropriate defenses that Court decisions have recognized. Section 3—Amendments to the ADA of 1990 This section, and its various subsections, includes the substantive body of the ADA Restoration Act, which amends specific provisions of the ADA. Subsection (a) revises references in the ADA to discrimination “against an individual with a disability” to refer instead to discrimination “on the basis of disability.” This change recognizes the social conception of disability and rejects the notion of a rigidly restrictive protected class. Subsection (b) revises certain of the congressional findings in the ADA. Paragraph (1) revises the finding in the ADA that provided a rough estimate of the number of people having actual disabilities, a figure that a majority of the Supreme Court misinterpreted as evidence that Congress intended the coverage of the Act to be narrowly circumscribed. The revised finding stresses that normal human variation occurs across a broad spectrum of human abilities and limitations, and makes it clear that all Americans are potentially susceptible to discrimination on the basis of disability, whether they actually have physical or mental impairments and regardless of the degree of any such impairment. Paragraph (2) revises the wording of the ADA finding regarding the history of purposeful unequal treatment suffered by people with certain types or categories of disabilities. Paragraphs (3) and (4) add a new finding that incorporates a social concept of disability and discrimination on the basis of disability. Subsection (c) revises some of the definitions used in the ADA. Paragraph (1) amends the definition of the term “disability” to clarify that it shall not be construed narrowly and legalistically by drawing fine technical distinctions based on relative differences in degrees of impairment, instead of focusing on how the person is perceived and treated. This approach rejects the medical model of disability that categorizes people because of their supposedly intrinsic limitations, without reference to social context and socially imposed barriers, and to individual factors such as compensatory techniques and personal strengths, goals, and motivation. The second part, headed “Construction,” invalidates the Supreme Court’s rulings in Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson’s, Inc. v. Kirkingburg by clarifying that mitigating measures, such as medications, assistive devices, and compensatory mechanisms shall not be considered in determining whether an individual has a disability. Paragraphs (2) and (3) add definitions of the terms “physical or mental impairment,” “perceived physical or mental impairment,” and “record of physical or mental impairment” to the statutory language. These definitions are derived from current ADA regulations, and were recommended for inclusion in NCD’s original 1988 version of the ADA. Subsection (d) clarifies that the ADA’s “direct-threat” defense applies to customers, clients, passersby, and other people who may be put at risk by workplace activities, but, contrary to the Court’s ruling in Chevron U.S.A. Inc. v. Echazabal, not to the worker with a disability. The latter clarification returns the scope of the direct-threat defense to the precise dimensions in which it was established in the express language of the ADA as enacted. Subsection (e) restores the carefully crafted standard of undue hardship as the sole criterion for determining the reasonableness of an otherwise effective accommodation. Subsection (f) clarifies that ADA employment rights of individuals with disabilities, including the opportunity to be reassigned to a vacant position as a reasonable accommodation, are not to take a backseat to rights of other employees under a seniority system or collective bargaining agreement. In addition, covered entities are directed to incorporate recognition of ADA rights in future collective bargaining agreements. Subsection (g) adds new subsections to the Remedies provision of Title II of the ADA. The first restores the possibility of recovering punitive damages available to ADA plaintiffs who prove they have been subjected to intentional discrimination, an opportunity that was foreclosed by the Supreme Court in Barnes v. Gorman. The second added subsection underscores the fact that other remedies, but not punitive damages, are available to ADA plaintiffs who prove that they have been subjected to “disparate impact” discrimination. The third new subsection establishes that intentionally refusing to comply with certain requirements of Title II of the ADA and the Rehabilitation Act, including accessibility requirements, auxiliary aids requirements, communication access requirements, and the prohibition on blanket exclusions in eligibility criteria and qualification standards, constitutes engaging in unlawful intentional discrimination. Subsection (h) provides that the provisions of the Act are to be liberally construed to advance its remedial purposes. To counter the Court’s ruling that eligibility for ADA protection should be “interpreted strictly to create a demanding standard for qualifying” (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams), another provision declares that the elements of the definition of “disability” are to be interpreted broadly. In addition, the subsection provides that “discrimination” is to be construed broadly to include the various forms in which discrimination on the basis of disability occurs. The subsection adds provisions that direct the attorney general, the Equal Employment Opportunity Commission, and the Secretary of Transportation to issue regulations implementing the “ADA Restoration Act,” and establish that properly issued ADA regulations are entitled to deference in administrative and judicial proceedings. Subsection (i) corrects the ruling of the Supreme Court in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, which rejected the catalyst theory in determining eligibility of ADA plaintiffs to attorney’s fees, by reinstating the catalyst theory. Section 4—Effective Date This section provides that the Act and the amendments it makes shall take effect upon enactment, and shall apply to cases that are pending when it is enacted or that are filed thereafter. The ADA Restoration Act of 2004: A Draft Bill To amend the Americans with Disabilities Act (ADA) of 1990 to restore the broad scope of protection and the remedies available under the Act, and to clarify the inconsistency with the Act of certain defenses. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Section 1.—Short Title. This Act may be cited as the “ADA Restoration Act of 2004.” Section 2.—Findings and Purposes. (a) Findings.—The Congress finds that — (1) in enacting the ADA of 1990, Congress intended that the Act “establish a clear and comprehensive prohibition of discrimination on the basis of disability,” and provide broad coverage and vigorous and effective remedies without unnecessary and obstructive defenses; (2) some decisions and opinions of the Supreme Court have unduly narrowed the broad scope of protection afforded in the ADA, have eliminated or narrowed remedies meant to be available under the Act, and have recognized certain defenses that run counter to the purposes of the Act; (3) in enacting the ADA, Congress recognized that physical and mental impairments are natural and normal parts of the human experience that in no way diminish a person’s right to fully participate in all aspects of society, but Congress also recognized that people with physical or mental impairments having the talent, skills, abilities, and desire to participate in society are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers; (4) Congress modeled the ADA definition of disability on that of Section 504 of the Rehabilitation Act of 1973, which had to the time of the ADA’s enactment been construed broadly to encompass both actual and perceived limitations, and limitations imposed by society; the broad conception of the definition had been underscored by the Supreme Court’s statement in its decision in School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987), that the Section 504 definition “acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment”; (5) in adopting the Section 504 concept of disability in the ADA, Congress understood that adverse action based on a person’s physical or mental impairment might have nothing to do with any limitations caused by the impairment itself; (6) instead of following congressional expectations that disability would be interpreted broadly in the ADA, the Supreme Court has ruled, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002), that the elements of the definition “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and, consistent with that view, has narrowed the application of the definition in various ways; (7) contrary to explicit congressional intent expressed in the ADA committee reports, the Supreme Court has eliminated from the Act’s coverage individuals who have mitigated the effects of their impairments through the use of such measures as medication and assistive devices; (8) contrary to the expectations of Congress in enacting the ADA, the Supreme Court has rejected the “catalyst theory” in the awarding of attorney’s fees and litigation costs under the Act, and has ruled that punitive damages may not be awarded in private suits under Section 202 of the Act; (9) contrary to congressional intent and the express language of the ADA, the Supreme Court has recognized the defense that a worker with a disability could pose a direct threat to her or his own health or safety; (10) contrary to carefully crafted language in the ADA, the Supreme Court has recognized a reasonableness standard for reasonable accommodation distinct from the undue hardship standard that Congress had imposed; (11) contrary to congressional intent, the Supreme Court has made the reasonable accommodation rights of workers with disabilities under the ADA subordinate to seniority rights of other employees; and (12) legislation is necessary to return the ADA to the breadth of coverage, the array of remedies, and the finely calibrated balance of standards and defenses Congress intended when it enacted the Act. (b) Purposes.—The purposes of this Act are — (1) to effect the ADA’s objectives of providing “a clear and comprehensive national mandate for eliminating discrimination” and “clear, strong, and enforceable standards addressing discrimination” by restoring the broad scope of protection and the remedies available under the ADA, and clarifying the inconsistency with the Act of certain defenses; (2) to respond to certain decisions of the Supreme Court that have narrowed the class of people who can invoke the protection from discrimination the ADA provides, reduced the remedies available to successful ADA claimants, and recognized or permitted defenses that run counter to ADA objectives; (3) to reinstate original congressional intent regarding the definition of disability by clarifying that ADA protection is available for all individuals who are subjected to adverse treatment based on actual or perceived impairment, or are adversely affected by prejudiced attitudes, such as myths, fears, ignorance, or stereotypes concerning disability or particular disabilities, or by the failure to remove societal and institutional barriers; (4) to restore the full array of remedies available under the ADA; (5) to ensure that the rights afforded by the ADA are not subordinated by paternalistic and misguided attitudes and false assumptions about what a person with a physical or mental impairment can do without endangering the individual’s own personal health or safety; (6) to ensure that the rights afforded by the ADA are not subordinated to seniority rights of other employees in regard to an otherwise vacant job position to which the individual requires transfer as a reasonable accommodation; and (7) to ensure that the carefully crafted standard of undue hardship as a limitation on reasonable accommodation rights afforded by the ADA shall not be undermined by recognition of a separate and divergent reasonableness standard. Section 3.—Amendments to the ADA of 1990. (a) Discrimination.—References in the ADA to discrimination “against an individual with a disability” or “against individuals with disabilities” shall be replaced by references to discrimination “on the basis of disability” at each and every place that such references occur. (b) Findings.—Section 2(a) of the ADA of 1990 (42 U.S.C. 12101(a)) is amended— (1) by striking the current subsection (1) and replacing it with the following: “(1) though variation in people’s abilities and disabilities across a broad spectrum is a normal part of the human condition, some individuals have been singled out and subjected to discrimination because they have conditions considered disabilities by others; other individuals have been excluded or disadvantaged because their physical or mental impairments have been ignored in the planning and construction of facilities, vehicles, and services; and all Americans run the risk of being discriminated against because they are misperceived as having conditions they may not actually have or because of misperceptions about the limitations resulting from conditions they do have”; (2) by striking the current subsection (7) and replacing it with the following: “(7) some groups or categories of individuals with disabilities have been subjected to a history of purposeful unequal treatment, have had restrictions and limitations imposed upon them because of their impairments, and have been relegated to positions of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society; classifications and selection criteria that are based on prejudice, ignorance, myths, irrational fears, or stereotypes about disability should be strongly disfavored, subjected to skeptical and meticulous examination, and permitted only for highly compelling reasons”; (3) by striking the period (“.”) at the end of the current subsection (9) and replacing it with “; and”; and (4) by adding after the current subsection (9) the following new subsection: “(10) discrimination on the basis of disability is the result of the interaction between an individual’s actual or perceived impairment and attitudinal, societal, and institutional barriers; individuals with a range of actual or perceived physical or mental impairments often experience denial or limitation of opportunities resulting from attitudinal barriers, including negative stereotypes, fear, ignorance, and prejudice, in addition to institutional and societal barriers, including architectural, transportation, and communication barriers, and the refusal to make reasonable modifications to policies, practices, or procedures, or to provide reasonable accommodations or auxiliary aids and services.” (c) Definitions.—Section 3 of the ADA of 1990 (42 U.S.C. 12102) is amended— (1) by striking the current subsection (2) and replacing it with the following: “(2) Disability. “(A) In G ener al.—The term “disability” means, with respect to an individual— (i) a physical or mental impairment; (ii) a record of a physical or mental impairment; or (iii) a perceived physical or mental impairment. “(B) Construction.— (i) The existence of a physical or mental impairment, or a record or perception of a physical or mental impairment, shall be determined without regard to mitigating measures; (ii) The term “mitigating measure” means any treatment, medication, device, or other measure used to eliminate, mitigate, or compensate for the effect of an impairment, and includes prescription and other medications, personal aids and devices (including assistive technology devices and services), reasonable accommodations, or auxiliary aids and services; and (iii) actions taken by a covered entity because of a person’s use of a mitigating measure or because of a side effect or other consequence of the use of such a measure shall be considered ‘on the basis of disability.’” (2) by redesignating the current subsection (3) as subsection (6); and (3) by adding after the current subsection (2) the following new subsections: “(3) Physical or mental imp airm ent.—The term “physical or mental impairment” means— “(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. “(4) Record of physical or mental imp a irm ent.—The terms “record of a physical or mental impairment” or “record of impairment” means having a history of, or having been misclassified as having, a physical or mental impairment. “(5) Perceived physical or mental imp a irm ent.—The terms “perceived physical or mental impairment” or “perceived impairment” mean being regarded as having or treated as having a physical or mental impairment.” (d) Direct threat.—Subsection 101(3) of the ADA of 1990 (42 U.S.C. 12111(3)) is amended— (1) by redesignating the current definition as part (A)— In gene ral; and (2) by adding after the redesignated part (A) a new part (B) as follows: “(B) C onst ruction.—The term “direct threat” includes a significant risk of substantial harm to a customer, client, passerby, or other person that cannot be eliminated by reasonable accommodation. Such term does not include risk to the particular applicant or employee who is or is perceived to be the source of the risk.” (e) Reasonable accommodation.—Subsection 101(9) of the ADA of 1990 (42 U.S.C. 12111(9)) is amended— (1) by redesignating the current definition as part (A)— Exam ple s of types of accommodations.; and (2) by adding after the redesignated part (A) a new part (B) as follows: “(B) Re aso n able ness.—A reasonable accommodation is a modification or adjustment that enables a covered entity’s employee or applicant with a disability to enjoy equal benefits and privileges of employment or of a job application, selection, or training process, provided that— (i) the individual being accommodated is known by the covered entity to have a mental or physical limitation resulting from a disability, is known by the covered entity to have a record of a mental or physical limitation resulting from a disability, or is perceived by the covered entity as having a mental or physical limitation resulting from a disability; (ii) without the accommodation, such limitation will prevent the individual from enjoying such equal benefits and privileges; and (iii) the covered entity may establish, as a defense, that a particular accommodation is unreasonable by demonstrating that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” (f) Nonsubordination.—Section 102 of the ADA of 1990 (42 U.S.C. 12112) is amended by adding after the current subsection (c) a new subsection as follows: “(d) Nonsubordination.— A covered entity’s obligation to comply with this Title is not affected by any inconsistent term of any collective bargaining agreement or seniority system. The rights of an employee with a disability under this Title shall not be subordinated to seniority rights of other employees in regard to an otherwise vacant job position to which the individual with a disability requires transfer as a reasonable accommodation. Covered entities under this Title shall include recognition of ADA rights in future collective bargaining agreements.” (g) Remedies.—Section 203 of the ADA of 1990 (42 U.S.C. 12133) is amended— (1) by redesignating the current textual provision as subsection (a)— In gene ral ., and adding at the beginning of the text of subsection (a) the phrase “Subject to subsections (b), (c), and (d),”; and (2) by adding, after the redesignated subsection (a), new subsections as follows: “(b) Claims based on proof of in tent iona l di scri mi nati on.—In an action brought by a person aggrieved by discrimination on the basis of disability (referred to in this section as an ‘aggrieved person’) under Section 202 of this Act, or under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), against an entity covered by those provisions who has engaged in unlawful intentional discrimination (not a practice that is unlawful because of its disparate impact) prohibited under those sections (including their implementing regulations), an aggrieved person may recover equitable and legal relief (including compensatory and punitive damages) and attorney’s fees (including expert fees) and costs. “(c) Claims based on di spar ate im pact .—In an action brought by an ‘aggrieved person’ under Section 202 of this Act, or under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), against an entity covered by those provisions who has engaged in unlawful disparate impact discrimination prohibited under those sections (including their implementing regulations), an aggrieved person may recover equitable relief and attorney’s fees (including expert fees) and costs. “(d) Construction.—In addition to other actions that constitute unlawful intentional discrimination under subsection (b), a covered entity engages in such discrimination when it intentionally refuses to comply with requirements of Section 202 of this Act, or of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or of their implementing regulations, by willfully, unlawfully, materially, and substantially— (1) failing to meet applicable program and facility accessibility requirements for existing facilities, new construction and alterations; (2) failing to furnish appropriate auxiliary aids and services; (3) failing to ensure effective communication access; or (4) imposing discriminatory eligibility criteria or employment qualification standards that engender a blanket exclusion of individuals with a particular disability or category of disability.” (h) C onstruction.—Section 501 of the ADA of 1990 (42 U.S.C. 12201) is amended by adding after the current subsection (d) the following new subsections: “(e) S upportive construction.—In order to ensure that this Act achieves its objective of providing a comprehensive prohibition of discrimination on the basis of disability, discrimination that is pervasive in America, the provisions of the Act shall be flexibly construed to advance its remedial purposes. The elements of the definition of “disability” shall be interpreted broadly to encompass within the Act’s protection all persons who are subjected to discrimination on the basis of disability. The term “discrimination” shall be interpreted broadly to encompass the various forms in which discrimination on the basis of disability occurs, including blanket exclusionary policies based on physical, mental, or medical standards that do not constitute legitimate eligibility requirements under the Act; the failure to make a reasonable accommodation, to modify policies and practices, and to provide auxiliary aids and services, as required under the Act; adverse actions taken against individuals based on actual or perceived limitations; disparate, adverse treatment of individuals based on disability; and other forms of discrimination prohibited in the Act. “(f) Regulations implementing the ada re stor ation act.—Not later than 180 days after the date of enactment of The ADA Restoration Act of 2004, the attorney general, the Equal Employment Opportunity Commission, and the Secretary of Transportation shall promulgate regulations in an accessible format that implement the provisions of the ADA Restoration Act. “(g) Deference to regulations.—Duly issued federal regulations for the implementation of the ADA, including provisions implementing and interpreting the definition of disability, shall be entitled to deference by administrative bodies or officers and courts hearing any action brought under the Act.” (i) A ttorney’s fees.—Section 505 of the ADA of 1990 (42 U.S.C. 12205) is amended by redesignating the current textual provision as subsection (a)— In general, and adding additional subsections as follows: “(b) D efinition of p rev a ili ng pa rty—The term `prevailing party’ includes, in addition to a party who substantially prevails through a judicial or administrative judgment or order, or an enforceable written agreement, a party whose pursuit of a nonfrivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought. “(c) R elationship to other laws— (1) S pecial criteria for p rev a ili ng defendants—If any other Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, or of any judicial or administrative rule, which addresses the recovery of attorney’s fees, requires a defendant, but not a plaintiff, to satisfy certain different or additional criteria to qualify for the recovery of attorney’s fees, subsection (b) shall not affect the requirement that such defendant satisfy such criteria. “(2) S pecial criteria unrelated to p rev a ili ng—If an Act, ruling, regulation, interpretation, or rule described in paragraph (1) requires a party to satisfy certain criteria, unrelated to whether or not such party has prevailed, to qualify for the recovery of attorney’s fees, subsection (b) shall not affect the requirement that such party satisfy such criteria.” Section 4.—Effective Date. This Act and the amendments made by this Act shall take effect upon enactment and shall apply to any case pending or filed on or after the date of enactment of this Act. I. Background and Overview The will of Americans, reflected in congressional and presidential actions, is being frustrated by the courts in regard to the Americans with Disabilities Act (ADA). “We the people of the United States,” acting through our democratically elected senators, representatives, and President, enacted the ADA in 1990, with broad bipartisan support. Polls show that “we the people” still remain overwhelmingly supportive of it. Since its enactment, the ADA has had a substantial positive effect. But, as Justice Oliver Wendell Holmes suggested in 1881, ultimately the law is what judges say it is. It is critical, therefore, that courts follow the spirit and letter of laws they are interpreting so that appointed judges’ viewpoints about what the law should be will not replace the actual content of laws enacted by the joint action of the two democratically elected branches. As the Supreme Court observed in a 1989 case, “Our task ... is not to fashion the rule we deem desirable but to identify the rule that Congress fashioned.”¹ Unfortunately, courts all too often have been out of step with the congressional, presidential, and public consensus in favor of ADA objectives, and have taken antagonistic and restrictive approaches to the ADA. In particular, a string of decisions by the Supreme Court has significantly diminished the civil rights of people with disabilities. Such rulings of the Court and the attendant harmful media portrayals of the ADA have had a detrimental impact on the lives of many Americans with disabilities, threatening a return to second-class citizenship. The National Council on Disability (NCD) has undertaken a major initiative—titled Righting the ADA—to respond to the Court’s damaging decisions. The project has two principal objectives: (1) to document and explain the problems created by the Supreme Court’s ADA decisions; and (2) to develop legislative proposals for addressing those problems that appear appropriate for legislative correction. The results are summarized in this report. More detailed descriptions of the specific issues and problems are presented in a series of policy briefs published on NCD’s Web site at www.ncd.gov/newsroom/publications/2003/policybrief.htm. A cornerstone of the American system of government is the division of federal governing power into three separate branches—executive, legislative, and judicial—a division that is referred to as the “separation of powers.” Effective functioning of American government demands, however, that each of the branches of government must stay within the boundaries of its authority and respect the role of the other branches. For this reason, the executive, legislative, and judicial branches are referred to as “coequal”—a term that indicates that none of them is superior to the others and that they must work in a coordinated fashion, with each doing its job and not encroaching on the responsibilities of the others. A grave danger to American democracy is presented by situations in which one of the three branches invades the area of authority that the Constitution of the United States assigns to the other branches. The respect accorded to the coequal branches of government is the reason courts are supposed to give properly enacted federal laws a presumption of validity, and are not to strike down such laws except as a last resort. In 1991, concern that eight recent decisions of the Supreme Court had impeded the implementation of Title VII of the Civil Rights Act of 1964 and other civil rights laws led Congress to enact, and President George H.W. Bush to sign into law, the Civil Rights Act of 1991, which reversed the impact of those troublesome decisions.² The public will, reflected in congressional, presidential, and popular support, is again being thwarted by the Court’s rulings—this time in regard to the ADA. Thus, it appears again necessary for legislative action to orient the course of the statute back to the path that Congress and the President originally intended. A. Broad Bipartisan Support President George H.W. Bush called July 26, 1990, “an incredible day…an immensely important day,” for on that date he signed into law the Americans with Disabilities Act (ADA). In his remarks at the signing ceremony, the President described the Act as an “historic new civil rights Act, ... the world’s first comprehensive declaration of equality for people with disabilities.” He added that “[w]ith today’s signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom.” He also noted that “my administration and the Congress have carefully crafted this Act.” A rarity about the ADA was that it was an important piece of legislation that almost everyone supported. The votes in Congress to pass the ADA were overwhelmingly in favor of passage. The Senate passed its version of the ADA bill by a vote of 76 to 8; the House of Representatives passed its bill 403 to 20. After differences were ironed out in conference, the House approved the final version of the bill by a vote of 377 to 28, and the Senate followed suit, adopting the final ADA bill by the lopsided margin of 91 to 6. Congressional committees that considered the ADA were equally united in their backing of the legislation. Two of the five committees—the Senate Labor and Human Resources Committee and the House Committee on Education and Labor—adopted ADA bills unanimously. None of the formal up-or-down committee votes on reporting out the ADA, nor any of the floor votes on passage of the legislation, had less than a 90 percent majority in favor of the ADA bills. Such overwhelming approval of a measure—with at least 9 out of 10 voting for it—obviously can occur only if it has both Republican and Democratic support. The ADA originated, as Senator Robert Dole, the Senate minority leader emphasized, “with an initiative of the National Council on Disability, an independent federal body composed of 15 members appointed by President Reagan and charged with reviewing all laws, programs, and policies of the Federal Government affecting individuals with disabilities.” Proposed by Reagan appointees, initially sponsored by a Republican in the Senate (Senator Lowell Weicker) and a Democrat in the House of Representatives (Representative Tony Coelho), passed by a Democrat-controlled Senate and House of Representatives, and supported and signed by President George H.W. Bush, the ADA was a model of bipartisanship. Before the ADA was reintroduced in the 101st Congress, ADA advocates in Congress determined that, to pass an effective and enforceable law, they needed the support of the administration and members of Congress from both major political parties. As Congressman Coelho would later report, “If it had become a Democratic bill, [the ADA] would have lost.... It had to be bipartisan.” As the ADA passed the Senate, Senator Dole called it “a good example of bipartisanship in action.” Likewise, President George H.W. Bush credited the success of the ADA to the fact that members of Congress, “on both sides of the political aisle” agreed to “put politics aside” to “do something decent, something right.” He credited the ADA’s passage to “a coalition in the finest spirit. A joining of Democrats and Republicans. Of the Legislative and the Executive Branches. Of federal and state agencies. Of public officials and private citizens. Of people with disabilities and without.” Members of both political parties participated in cooperative meetings to craft compromise provisions and revise problematic language in the bills. Republican Representative Steve Bartlett described meetings with the leading House advocate for the ADA, Democrat Steny Hoyer, as “the most productive and satisfying legislative negotiations that I had ever been involved with.” In addition to congressional dialogue and bargaining, a key factor in obtaining bipartisan backing and ultimately passing the ADA was the unwavering support for the legislation by President George H.W. Bush and his administration. While he was Vice President, Mr. Bush had pledged that he would promote a civil rights act for people with disabilities. Two days before his inauguration as President, Mr. Bush declared, “I said during the campaign that disabled people have been excluded for far too long from the mainstream of American life. ... One step that I have discussed will be action on the Americans with Disabilities Act in order, in simple fairness, to provide the disabled with the same rights afforded others, afforded other minorities.” Early in the Senate hearings on the ADA, Senator Tom Harkin, a Democrat, made a remarkable statement crediting President George H.W. Bush’s public remarks in favor of rights for people with disabilities: [W]e have had strong, strong statements made by President Bush—no President of the United States, Republican or Democrat, has ever said the things about disabled Americans that George Bush has said. No President, including the President who was in a wheelchair, Franklin Roosevelt. Senator Harkin concluded that “this bodes well” and meant that “we can work together with the administration, [on] both sides of the aisle...” on the ADA. Attorney General Dick Thornburgh formally announced the Bush administration’s support for the ADA during Senate hearings on the legislation. He declared, “[w]e at the Justice Department wholeheartedly share [the ADA’s] goals and commit ourselves, along with the President and the rest of his administration to a bipartisan effort to enact comprehensive legislation attacking discrimination in employment, public services, transportation, public accommodations, and telecommunications.” He added, in regard to the ADA bill, that “[o]ne of its most impressive strengths is its comprehensive character” that was consistent with President George H.W. Bush’s commitment to ensuring people with disabilities’ “full participation in and access to all aspects of society.” After administration and Senate advocates ironed out differences on specific provisions, the Administration’s express endorsement of the legislation led to a unanimous Senate Committee vote to report the bill out of committee, and to more than 60 Senators signing on as cosponsors. It also set the stage for favorable House action and final passage of the ADA. As the ADA passed the Senate, Senator Dole praised President George H.W. Bush for his leadership on the legislation, and declared that “[w]e would not be here today without the support of the President.” The senator credited a list of administration officials, including Chief of Staff John Sununu and Attorney General Dick Thornburgh, whose efforts contributed to the passage of the ADA. He also appended to his remarks a New York Times opinion-editorial piece about the ADA written by James S. Brady, who had been President Reagan’s Press Secretary. Mr. Brady wrote: As a Republican and a fiscal conservative, I am proud that this bill was developed by 15 Republicans appointed to the National Council on Disability by President Reagan. Many years ago, a Republican President, Dwight D. Eisenhower, urged that people with disabilities become taxpayers and consumers instead of being dependent upon costly federal benefits. The [ ADA] grows out of that conservative philosophy. NCD previously observed: More than any other single player, the role of President Bush cannot be overestimated. The ADA would have made little headway were it not for the early and consistent support from the nation’s highest office. ...The president’s support brought people to the table to work out a bipartisan compromise bill that could obtain the support of the business community as well as that of the disability community.³ Acclaim for the ADA came from many other sources. Senator Dole called the ADA “landmark legislation” that would “bring quality to the lives of millions of Americans who have not had quality in the past.” Senator Hatch declared the ADA was “historic legislation” whose passage was “a major achievement” demonstrating that “in this great country of freedom, ... we will go to the farthest lengths to make sure that everyone has equality and that everyone has a chance in this society.” The executive director of the Leadership Conference on Civil Rights described the ADA as “the most comprehensive civil rights measure in the past two-and-a-half decades.” Senator Edward M. Kennedy termed the legislation a “bill of rights” and “an emancipation proclamation” for people with disabilities. The late Justin Dart, who occupied disability policy positions in the Reagan, Bush, and Clinton administrations, called the ADA “a landmark commandment of fundamental human morality.” B. Backing by Subsequent Presidents In 2000, President Bill Clinton proclaimed July as “The Spirit of the ADA Month” and declared, The enactment of the Americans with Disabilities Act 10 years ago this month signaled a transformation in our Nation’s public policies toward people with disabilities. America is now a dramatically different—and better—country because of the ADA. In addition to citing past accomplishments and pending initiatives his administration was pursuing to further the implementation of the ADA, President Clinton added, “Vice President Gore and I are proud to join in the celebration and to renew our own pledge to help advance the cause of disability rights.” For his part, Vice President Al Gore observed, “We know we can’t just pass a few laws and change attitudes overnight. But day by day, person by person, we can make a difference. Together, let’s not just complete the work of the ADA—let’s say to the whole world: this is one country that knows we don’t have a person to waste, and we’re moving into the next century—together.”⁴ Bipartisan support and presidential commitment to the ADA have continued. President George W. Bush endorsed the Act and, in February 2001, issued his “New Freedom Initiative,” committing his administration to ensuring the rights and inclusion of people with disabilities in all aspects of American life. On June 18, 2001, President Bush issued Executive Order No. 13217, declaring the commitment of the United States to community-based alternatives for individuals with disabilities. On the twelfth anniversary of the signing of the ADA, July 26, 2002, the President proclaimed the ADA to be “one of the most compassionate and successful civil rights laws in American history.”⁵ The White House also declared that “[t]he administration is committed to the full enforcement of the Americans with Disabilities Act.” President Bush asserted a clear continuity between his commitment to the ADA and that of his father: [W]hen my father signed the ADA into law in 1990, he said, “We must not and will not rest until every man and woman with a dream has the means to achieve it.” Today we renew that commitment, and we continue to work for an America where individuals are celebrated for their abilities, not judged by their disabilities. C. Will of the People In enacting the ADA and in seeking its vigorous enforcement, the elected branches of the Federal Government—the Congress and the President—have carried out the will of the American people. A large majority of the public reports that it favors the ADA. A 2002 Harris Poll found that, of the 77 percent of Americans who said they were aware of the ADA, an overwhelming percentage (93 percent) reported that they “approve of and support it.” The ADA is supported by most of the business sector. A Harris Poll of business executives in 1995, for example, showed that 90 percent of the executives surveyed said that they supported the ADA. In the face of negative media reports on the ADA (often misleading and sometimes flatly inaccurate), most Americans are still highly favorably disposed to the Act. They have had experience with the realities of the ADA in their communities and workplaces, and have seen how people have benefited from it. They have noticed people with visible disabilities at stores, malls, theaters, stadiums, and museums. They have seen the ramps, accessible bathrooms, disabled parking spaces, and other accessibility features that the ADA has engendered. They encounter people who use wheelchairs now able to go to department stores, fast food places, and government offices. They know that the son of their neighbors is now living comfortably in an apartment in the neighborhood with appropriate support services instead of in an institutional setting. They are aware that sign language interpreters now are routinely present at their county council meetings. In these and countless other ways, they have seen the ADA in action, and they approve. D. Impact of the ADA In a variety of ways, the ADA has lived up to the high hopes that accompanied its passage. The provisions of the ADA that address architectural, transportation, and communication accessibility have changed the face of American society in numerous concrete ways. A vast number of buildings and other structures have been affected by provisions of the ADA that make it illegal to design or construct any new place of public accommodation or other commercial facility without making it readily accessible to and usable by people with disabilities, or to alter such a facility without incorporating accessibility features. The ADA’s mass transit provisions ended decades of disagreements and controversy regarding many of the issues that determined exactly what is required of public transportation systems to avoid discriminating on the basis of disability. The ADA contains detailed provisions describing requirements for operators of bus, rail, and other public transportation systems, and intercity and commuter rail systems. Although implementation has been far from perfect and ADA provisions do not answer all the questions, much progress in transportation accessibility has been made. The ADA’s employment provisions have dramatically affected hiring practices by barring invasive preemployment questionnaires and disability inquiries and the misuse of preemployment physical information. These provisions also have made job accommodations for workers with disabilities more common than they were before the ADA was enacted. The ADA’s telecommunications provisions have resulted in the establishment of a nationwide system of relay services, which permit the use of telephone services by those with hearing or speech impairments, and a closed captioning requirement for the verbal content of all federally funded television public service announcements. Other provisions of Title II of the ADA (covering state and local governments) and Title III (covering public accommodations) have eliminated many discriminatory practices by private businesses and government agencies. The ADA has had a particularly strong impact in promoting the development of community residential, treatment, and care services in lieu of unnecessarily segregated large state institutions and nursing homes. The Act provided the impetus for President George W. Bush’s “New Freedom Initiative,” issued in February 2001, committing his administration to assuring the rights and inclusion of people with disabilities in all aspects of American life; and for Executive Order No. 13217, issued on June 18, 2001, declaring the commitment of the United States to community-based alternatives for people with disabilities. At the ADA signing ceremony, the first President Bush declared that other countries, including Sweden, Japan, the Soviet Union, and each of the 12 member nations of the European Economic Community, had announced their desire to enact similar legislation. In the years since its enactment, numerous other countries have been inspired by the ADA to seek legislation in their own jurisdictions to prohibit discrimination on the basis of disability. These countries have looked to the ADA, if not as a model, at least as a touchstone in crafting their own legislative proposals. In 1988, while the original ADA bills were pending before Congress, the Presidential Commission on the Human Immunodeficiency Virus (HIV) Epidemic endorsed the legislation and recommended that the ADA should serve as a vehicle for protecting from discrimination people with HIV infection. The ADA has proved to be the principal civil rights law protecting people with HIV from the sometimes egregious discriminatory actions directed at them. In a broader sense, the ADA has, as the Council has observed in a previous report, “begun to transform the social fabric of our nation”: It has brought the principle of disability civil rights into the mainstream of public policy. The law, coupled with the disability rights movement that produced a climate where such legislation could be enacted, has impacted fundamentally the way Americans perceive disability. The placement of disability discrimination on a par with race or gender discrimination exposed the common experiences of prejudice and segregation and provided clear rationale for the elimination of disability discrimination in this country. The ADA has become a symbol, internationally, of the promise of human and civil rights, and a blueprint for policy development in other countries. It has changed permanently the architectural and telecommunications landscape of the United States. It has created increased recognition and understanding of the manner in which the physical and social environment can pose discriminatory barriers to people with disabilities. It is a vehicle through which people with disabilities have made their political influence felt, and it continues to be a unifying focus for the disability rights movement.⁶ This is not to ignore the fact that there are huge gaps in enforcement of the ADA’s requirements or that some covered entities have taken an I-won’t-do-anything-until-I’m-sued attitude toward the obligations imposed by the law. Indeed, the Promises to Keep report, from which the preceding quotations were taken, described a variety of problems and weaknesses in federal enforcement of the ADA and presented recommendations for remedying such deficiencies. Numerous people with disabilities, however, have told NCD that the ADA has played an important role in improving their lives. In 1995, NCD issued a report titled Voices of Freedom: America Speaks Out on the ADA, in which it presented a large number of statements by individuals with disabilities talking about the impact of the ADA. The following is a tiny sampling of the thousands of statements NCD received: The ADA is fantastic. I can go out and participate. The ADA makes me feel like I’m one of the gang. (Sandra Brent, Arkansas) Even though we had the Rehab Act of 1973, it took the ADA to make real change. The ADA has given me hope, independence, and dignity. ( Yadi Mark, Louisiana) Because of the ADA, I have more of the opportunities that other people have. Now I feel like a participant in life, not a spectator. (Brenda Henry, Kansas) A successful person with a disability was once thought of as unusual. Now successful people with disabilities are the rule. It’s the ADA that has opened the door. (Donna Smith-Whitty, Mississippi)⁷ The report presented statements by people with disabilities about their experiences with the ADA in various aspects of their lives, including access to the physical environment, access to employment opportunities, communication mobility, and self image. The report concluded that, …the actual research data and the experiences of people with disabilities, of their family members, of businesses, and of public servants, [demonstrates] that this relatively new law has begun to move us rapidly toward a society in which all Americans can live, attend school, obtain employment, be a part of a family, and be a part of a community in spite of the presence of a disability. What is needed now is a renewed commitment to the goals of the Act (which were crafted under unprecedented bipartisan efforts), sufficient resources to support further education and training concerning the ADA, and effective enforcement.⁸ In a similar vein, President George W. Bush declared the following in 2002: In the 12 years since President George H.W. Bush signed the ADA into law, more people with disabilities are participating fully in our society than ever before. As we mark this important anniversary, we celebrate the positive effect this landmark legislation has had upon our Nation, and we recognize the important influence it has had in improving employment opportunities, government services, public accommodations, transportation, and telecommunications for those with disabilities. Today, Americans with disabilities enjoy greatly improved access to countless facets of life; but more needs to be done. We must continue to build on the important foundations established by the ADA. Too many Americans with disabilities remain isolated, dependent, and deprived of the tools they need to enjoy all that our Nation has to offer.⁹ E. Judicial Resistance In light of the overwhelming endorsement of the ADA by Congress in enacting it, by the Presidents in office at and since its enactment, and by the majority of the general public, it is surprising and disappointing that the judiciary all too often has given the Act the cold shoulder. Problematic judicial interpretations have blunted the Act’s impact in significant ways. NCD has become increasingly concerned about certain interpretations and limitations placed on the ADA in decisions of the U.S. Supreme Court. This is not to suggest that all the rulings of the high court on the ADA have been negative. Among favorable decisions, the U.S. Supreme Court has (1) upheld the ADA’s integration requirement and applied it to prohibit unnecessary segregation of people receiving residential services from the states; (2) held the ADA applicable to protect prisoners in state penal systems; (3) held that the ADA prohibits discrimination by a dentist against a person with HIV infection; and (4) ruled that the ADA required the PGA to allow a golfer with a mobility impairment to use a golf cart in tournament play as a “reasonable modification.” But while not all of the Court’s ADA decisions are objectionable, those that are have had a serious negative impact. They have placed severe restrictions on the class of persons protected by the ADA, have narrowed the remedies available to complainants who successfully prove violations of the Act, have expanded the defenses available to employers, and have even called into question the very legality of some parts of the Act. NCD’s policy paper, The Impact of the Supreme Court’s ADA Decisions on the Rights of Persons with Disabilities, explores the effect such decisions have had on individuals with disabilities. Paper No. 7 of NCD’s Policy Brief Series: Righting the ADA Papers can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. Media coverage of the Court’s ADA decisions has made matters worse. While such coverage has not been uniformly negative, a significant portion of it has been misleading, presenting the Act in a highly unfavorable light and placing a negative “spin” on the ADA, the court decisions interpreting it, and its impact on American society. NCD’s extensive and detailed policy paper, Negative Media Portrayals of the ADA, discusses prevalent media-fed myths about the ADA. Paper No. 5 of NCD’s Policy Brief Series: Righting the ADA Papers can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. Inhibitive court decisions combined with harmful media perspectives have caused the ADA to be the object of frequent misunderstanding, confusion, and even derision. The detrimental pronouncements of the courts and negative impressions of the ADA fostered by media mischaracterizations have fed on one another and have generated increasing misunderstandings of the Act’s underlying purposes and vision, frustrated some of its central aims, and narrowed the scope and degree of its influence. II. Problematic Interpretations of the ADA A. Surprising Problems with the Definition of Disability When Congress passed the ADA and President George H.W. Bush signed it into law, hardly anyone expected trouble in the courts with the definition of disability. Congress played it safe by adopting in the ADA a definition of disability that was the same as the definition of “handicap” under the Rehabilitation Act. That definition was enacted in 1974 and clarified in regulations issued under Section 504 of the Rehabilitation Act. Because the definition was a broad and relatively uncontroversial one, defendants seldom challenged plaintiffs’ claims of having a disability.¹⁰ In 1984, a federal district court noted that, after 10 years’ experience with the Rehabilitation Act definition, only one court found a Section 504 plaintiff not to have a “handicap.”¹¹ In 1987, the U.S. Supreme Court made it abundantly clear that the definition of “handicap” under Section 504 was very broad. In School Board of Nassau County v. Arline, the Court took an expansive and nontechnical view of the definition. The Court found that Ms. Arline’s history of hospitalization for infectious tuberculosis was “more than sufficient” to establish that she had “a record of” a disability under Section 504 of the Rehabilitation Act. The Court made this ruling even though her discharge from her job was not because of her hospitalization. The Court displayed a lenient interpretation of what a plaintiff needed to show to invoke the protection of the statute. It noted that, in establishing the new definition of disability in 1974, Congress had expanded the definition “so as to preclude discrimination against ‘[a] person who has a record of, or is regarded as having, an impairment [but who] may at present have no actual incapacity at all.’” The Court declared that the “basic purpose of Section 504” was to ensure that individuals “are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others” or “reflexive reactions to actual or perceived [disabilities]” and that the legislative history of the definition of disability “demonstrates that Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual.” The Court elaborated as follows: Congress extended coverage ... to those individuals who are simply “regarded as having” a physical or mental impairment. The Senate Report provides as an example of a person who would be covered under this subsection “a person with some kind of visible physical impairment which in fact does not substantially limit that person’s functioning.” Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment. When Congress was considering the ADA, the Supreme Court’s decision in School Board of Nassau County v. Arline was the leading legal precedent on the definition of disability. The Arline ruling was expressly relied on in several ADA committee reports discussing the definition of disability. This was the legal background when Congress adopted the essentially identical definition of disability in the ADA. To further ensure that the definition of disability and other provisions of the ADA would not receive restrictive interpretations, Congress included in the ADA a provision requiring that “nothing” in the ADA was to “be construed to apply a lesser standard” than is applied under the relevant sections of the Rehabilitation Act, including Section 504, and the regulations promulgating them. In his remarks at the ADA signing ceremony, President George H.W. Bush pointed with pride to the ADA’s “piggybacking” on Rehabilitation Act language: The administration worked closely with the Congress to ensure that, wherever possible, existing language and standards from the Rehabilitation Act were incorporated into the ADA. The Rehabilitation Act standards are already familiar to large segments of the private sector that are either federal contractors or recipients of federal funds. Because the Rehabilitation Act was enacted 17 years ago, there is already an extensive body of law interpreting the requirements of that Act. Accordingly, at the time of the ADA’s enactment, it seemed clear that most ADA plaintiffs would not find it particularly difficult to establish that they had a disability. NCD issued two policy papers that discuss the care with which the ADA definition of disability was selected and the breadth of that definition. A Carefully Constructed Law and Broad or Narrow Construction of the ADA, papers No. 2 and No. 4, respectively, of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. For some time after the ADA was signed into law, the pattern of broad and inclusive interpretation of the definition of disability, established under Section 504, continued under the ADA. In 1996, a federal district court declared that “it is the rare case when the matter of whether an individual has a disability is even disputed.”¹² As some lower courts, however, began to take restrictive views of the concept of disability, defendants took note, and disability began to be contested in more and more cases. Beginning with its decision in Sutton v. United Airlines in 1999, the U.S. Supreme Court started to turn its back on the broad, relaxed interpretation of disability endorsed by the Court in the Arline decision. By the time of the Toyota Motor Manufacturing, Kentucky, Inc. v. Williams decision in 2002, the Court was espousing the view that the definition should be “interpreted strictly to create a demanding standard for qualifying as disabled.” This stance is directly contrary to what the Congress and the President intended when they enacted the ADA law. The result of the Court’s harsh and restrictive approach to defining disability places difficult, technical, and sometimes insurmountable evidentiary burdens on people who have experienced discrimination. The focus of many time-consuming and expensive legal battles is on the characteristics of the person subjected to discrimination rather than on the alleged discriminatory treatment meted out by the accused party. The ADA was intended to regulate the conduct of employers and other covered entities, and to induce them to end discrimination. To the extent that these parties can divert the focus to a microscopic dissection of the complaining party, central objectives of the law are being frustrated. Other governments and judicial forums have rejected the Supreme Court’s restrictive interpretation of disability. Thus, courts in the individual states¹³ and in other countries¹⁴ have embraced more inclusive interpretations of who has a disability under nondiscrimination laws. And legislatures in the states¹⁵ and in other countries¹⁶ deliberately have rejected the narrow approach under U.S. law as enunciated in the Supreme Court’s decisions. B. Specific Problems Created by the Supreme Court’s Decisions Regarding the Definition of Disability Issue: Consideration of Mitigating Measures in Determining Disability What the Supreme Court Did In a sharp break from the legislative history of the ADA, the position of the executive agencies responsible for enforcing the ADA, and the prior rulings of eight of the nine federal courts of appeal that had addressed the issue, the Supreme Court decided, in its rulings in the Sutton v. United Airlines, Inc., Murphy v. United Parcel Service, and Albertson’s, Inc. v. Kirkingburg cases, that mitigating measures should be considered in determining whether an individual has a disability under the ADA. The Supreme Court’s position on mitigating measures ignores the rationale that led courts, regulatory agencies, and Congress to take a contrary position—that unless you disregard mitigating measures in determining eligibility for ADA protection, you shield much discrimination on the basis of disability from effective challenge. Significance of the Court’s Action The result of the Court’s rulings on mitigating measures turns the ADA’s definition of disability into an instrument for screening out large groups of individuals with disabilities from the coverage of the Act, and thereby insulating from challenge many instances of the pervasive unfair and unnecessary discrimination that the law sought to prohibit. To the extent that mitigating measures are successful in managing an individual’s condition, the Supreme Court’s stance on mitigating measures deprives the individual of the right to maintain an ADA action to challenge acts of disability discrimination she or he has experienced, because such a person is not eligible for the ADA’s protection. This means an employer or other covered entity may discriminate with impunity against such individuals in various flagrant and covert ways. NCD issued a policy paper examining the function and types of mitigating measures, discussing the near consensus in the law prior to the Supreme Court’s taking a contrary position, and describing the repercussions of the Court’s position. The Role of Mitigating Measures in the Narrowing of the ADA’s Coverage, paper No. 11 of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. Examples of Impact Taking the condition of epilepsy to illustrate, before the Supreme Court’s rulings in Sutton, Murphy, and Kirkingburg, “a person [with] epilepsy would receive nearly automatic ADA protection,”¹⁷ consistent with statements in the ADA legislative history and regulatory guidance. The ADA regulatory commentary of the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) specifically declared that an individual with epilepsy would remain within the coverage of the ADA even if the effects of the condition were controlled by medication. The situation changed dramatically with the Supreme Court’s mitigating measures decisions. To the extent that a covered entity can successfully demonstrate (after extensive, intrusive discovery into the details of the person’s condition) that an individual’s epilepsy is effectively controlled by medication, the individual cannot challenge the discriminatory actions of the covered entity. This is true even if the employer or other covered entity has an express policy against the hiring of people with epilepsy; puts up signs that say, “epileptics not welcome here”; inaccurately assumes that all persons with epilepsy are inherently unsafe; or has the irrational belief that epilepsy is contagious. The unfairness or irrationality of the covered entity’s actions and motivations, including stereotypes, fears, assumptions, and other forms of prejudice, cannot be challenged by a person whose condition is mitigated. The end result is that it is a rare plaintiff who is in a position to challenge even the most egregious and outrageous discrimination involving a condition that can be mitigated. Epilepsy is an illustrative example, but the same principles apply to diabetes, various psychiatric disabilities, hypertension, arthritis, and numerous other conditions that, for some individuals, can be controlled by medication. Moreover, the same problems arise with conditions for which techniques and devices other than medication provide an avenue for mitigation. Thus, a company that discriminates against people who use hearing aids will be insulated from challenge by people for whom the hearing aids are effective in offsetting, to some degree, diminution of functional ability to hear. Issue: Substantial Limitation of a Major Life Activity What the Supreme Court Did The Supreme Court replaced the ADA language of “major life activities of such individual” with the Court’s formulation in Williams, “activities that are of central importance in most people’s daily lives.” It also transformed the definition of substantial limitation, from the EEOC regulations’ phrasing “either total inability to perform an activity or significant restrictions as to the condition, manner, or deviation under which an individual can perform,” to the Court’s language in Williams, “prevents or severely restricts” an individual from performing an activity. Significance of the Court’s Action The Supreme Court’s rulings on substantial limitation of a major life activity have increasingly constricted the meaning of this concept, which had already been narrowed by certain interpretations of the EEOC and some lower courts. On the whole, the Court’s decisions have made it much harder for plaintiffs seeking to invoke ADA protection to challenge alleged discriminatory actions. NCD issued a policy paper examining the meaning and significance of the concepts of substantial limitation and major life activities, what the Supreme Court has said about them, the implications of the Court’s declarations, and how the lower courts have handled questions about substantial limitation of major life activities. The Supreme Court’s ADA Decisions Regarding Substantial Limitation of Major Life Activities, paper No. 13 of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. Ultimately, the Court has gone a long way toward achieving its announced goal that the phrase “substantially limited in a major life activity” be “interpreted strictly to create a demanding standard for qualifying as disabled.” Examples of Impact Some lower courts have commented on the impact of the Supreme Court’s rulings on these issues. In the case of Mahon v. Crowell, for example, the Sixth Circuit referred to “[r]ecent Supreme Court decisions sharply limiting the reach of the ADA,” including requiring that the term “substantially limits” be read “strictly to create a demanding standard....” In Stedman v. Bizmart, the federal district court held that the plaintiff, a liver transplant recipient with diabetes, was not protected by the ADA because his diabetes did not substantially limit him in performing any major life activity outside of the workplace. The court explained: Prior to January 2002, case law made satisfaction of a prima facie case under the ADA, particularly meeting the “disability” prong, relatively simple. On January 8, 2002, however, the Supreme Court significantly altered the definition of “substantially limits a major life activity.” ... Curtailing previous case law defining “major life activities,” [the Court in Toyota v. Williams] held that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” ... As a result, this decision creates additional obstacles for many plaintiffs in disability cases.... Under Toyota, it appears that courts now have greater discretion in determining what is a major life activity and what interference with that activity is substantial enough to constitute a disability. By placing “additional obstacles” in the way of potential ADA plaintiffs and by giving judges greater discretion to dismiss ADA cases on the basis of technicalities and miserly standards, the Supreme Court has strayed a long way from pursuing the ADA’s express goal of establishing a clear and comprehensive prohibition of discrimination on the basis of disability. Issue: Employment as a Major Life Activity What the Supreme Court Did Although previously the matter had been considered settled law, in its decision in Sutton v. United Airlines, the Supreme Court indicated that it had doubts about whether working should be considered a major life activity under the ADA, stating that “there may be some conceptual difficulty in defining ‘major life activities’ to include work....” For the purposes of the Sutton case, the Court said that, because the issue was not raised by the parties, it was “assuming without deciding that working is a major life activity.” It again “assumed without deciding” the issue in its decision in the Murphy case, and, in its opinion in the Williams case, the Court, while again not resolving the issue, was even more explicit about its misgivings: Because of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much, and we need not decide this difficult question today. NCD included a discussion of “The Issue of Working as a Major Life Activity” as a section of its paper on The Supreme Court’s ADA Decisions Regarding Substantial Limitation of Major Life Activities. Paper No. 13 of NCD’s Policy Brief Series: Righting the ADA Papers can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. Significance of the Court’s Action In 1986, at oral arguments in the School Board of Nassau County v. Arline case under Section 504 of the Rehabilitation Act, the Solicitor General threw in a flawed, far-fetched argument that including work as a major life activity would be “a totally circular argument which lifts itself by its bootstraps.” In its decision in Arline, the Court replied sharply that “[t]he argument is not circular, however, but direct. Congress plainly intended the Act to cover persons with a physical or mental impairment (whether actual, past, or perceived) that substantially limited one’s ability to work.” Remarkably, in its decision in Sutton in 1999, the Supreme Court dredged up the Solicitor General’s failed argument and used it as authority for the Court to assert the existence of “some conceptual difficulty” in including work as a major life activity. The Court made this statement despite the fact that ADA and Section 504 regulations and the Senate and House ADA committee reports all expressly list work as a major life activity, and that the majority of the Court had accepted work as a major life activity in its decision in a previous case—Bragdon v. Abbott. The result of the misgivings the Court articulated in Sutton, Murphy, and Williams creates doubt where before there was none. Examples of Impact The Supreme Court’s reservations have left lower courts in something of a legal limbo on the issue of work as a major life activity. Many courts have, in effect, ignored the high court’s misgivings, and simply have continued to treat work as a major life activity as if it were a settled proposition. Other courts have taken note of the Supreme Court’s qualms, but have treated work as a major life activity for the purpose of deciding the cases before them, without actually ruling on the issue. Other courts have been more outspoken about their doubts as to whether work is still a major life activity. The Sixth Circuit declared that, after Sutton and Williams, “[a]s a major life activity, ... ‘working’ is problematic,” and, while it would “assume without deciding” that the regulatory provision declaring it to be so was valid, “[b]ecause of the problems surrounding ‘working,’” it would treat it “as a residual category resorted to only when a complainant cannot show she or he is substantially impaired in any other, more concrete major life activity.”¹⁸ Accordingly, the status of work as a major life activity has gone from being clearly established in the regulations and legislative history to being a proposition that, at least for some courts, is considered “problematic,” doubtful, and something of a last resort. Issue: The “Class or Broad Range of Jobs” Standard What the Supreme Court Did For some years, the EEOC has advanced a restrictive interpretation of the standard that must be met to prove that one is substantially limited in working. The EEOC has taken the position that a complainant must demonstrate more than an actual or perceived inability to perform a specific job; it has required ADA plaintiffs to show that they are “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes...” While it technically has not endorsed the EEOC’s position on this issue, the Supreme Court has referred to, quoted, and applied the EEOC standard in the circumstances of several ADA cases. Significance of the Court’s Action The notion that proof that a worker is not able to perform the essential functions of a particular job (or is perceived by an employer as being unable to do so) is insufficient to establish a substantial limitation of working grew out of a few court decisions under the Rehabilitation Act of 1973. Based on such dubious, inadequate, and misinterpreted precedents, and ignoring a body of contrary decisions and statements in the ADA legislative history calling for a less demanding standard, the EEOC devised in its ADA regulations a requirement that proving substantial limitation of work as a major life activity requires an ADA claimant to demonstrate significant restriction “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.” The EEOC never definitively clarified whether this standard should be applied under the third prong (“regarded as”) of the definition of disability or only under the first prong (actual disability). NCD has been critical of the EEOC’s formulation of the “single job” exception. NCD has contended that “[t]he illogic of permitting employers to terminate a person from a job because of a physical or mental condition and then to argue that the condition is not serious enough to constitute a disability is starkly apparent.”¹⁹ NCD also has issued a policy paper examining the origin and consequences of the EEOC’s approach, the Court’s statements about this approach, and the implications of the Court’s indecisive but suggestive position. The Supreme Court’s ADA Decisions Regarding the Not-Just-One-Job Standard, paper No. 14 of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. In a technical sense, the Supreme Court has yet to rule on whether proof that one cannot perform the essential functions of a particular job (or is perceived by an employer as being unable to do so) is sufficient to establish a substantial limitation in working. In its decisions in Sutton, Murphy, and Williams, however, the Court assumed without deciding that the EEOC’s interpretations of the term “substantially limits” were reasonable and valid, and then applied the EEOC’s “class of jobs or a broad range of jobs” standard under both the first and third prongs of the ADA ’s definition of disability. These decisions create the impression that the Court has endorsed the EEOC approach and found it applicable to situations in which a plaintiff claims that an employer regarded the plaintiff as being substantially limited in working. Examples of Impact The combination of the EEOC’s requirement of proof that a person is restricted in a class or broad range of jobs, the EEOC’s ambiguous stance as to whether that requirement also applies when plaintiffs seek to establish that their employers regarded them as substantially limited in working, and the Court’s application of the EEOC standard to claims under both the first and third prongs has precipitated a torrent of lower court rulings that make it difficult for plaintiffs to prove that they are, or are regarded as being, substantially limited in the activity of work. Whether they seek to establish that they are actually substantially limited in working or that their employer so regards them, ADA plaintiffs face demanding and at times antagonistic evidentiary burdens. There are extensive examples of situations in the case law in which plaintiffs have been fired, refused employment, or otherwise disadvantaged in the workplace because of their actual or perceived impairments but have been unable to bring ADA actions because they could not meet what one federal court of appeals called the “weighty showing” of demonstrating that they would be precluded from a class or broad range of jobs. Following are but a few examples of the all-too-numerous cases in which the extremely demanding standards applied by the courts for establishing substantial limitation of the activity of work have proved to be a daunting and at times insurmountable obstacle for ADA plaintiffs: An office worker with asthma and migraine headaches who experienced bronchitis, pneumonia, lung infections, and cluster-migraines when she was forced to work in a “smoke-infested” office. A pipefitter rigger with a seizure disorder that was not controlled by medication who was fired for refusing to work in elevated locations where there was no place to tie his safety belt to provide a lifeline in case he had a seizure. A customer service representative who was fired because his employer decided his HIV status precluded him from customer service work. A flight nurse with multiple sclerosis who was involuntarily dismissed from her position and reassigned to a less desirable job. Issue: “Regarded As” Having a Disability What the Supreme Court Did The “regarded as” prong of the definition of disability was established in 1974. It was conceived as an extremely broad element of the definition that would extend statutory protection to anyone who had been excluded or disadvantaged by a covered entity on the basis of a physical or mental impairment, whether real or perceived. Such a broad interpretation was embraced in Section 504 regulations and validated by the Supreme Court in its decision in School Board of Nassau County v. Arline. Subsequently, ADA committee reports endorsed the broad interpretation of being regarded as having a disability and this approach was codified in ADA regulations. In its decision in Sutton v. United Airlines, however, the Supreme Court disregarded the expansive view of the third prong and took a restrictive approach to its interpretation. Specifically, the Court has narrowed the scope of the “regarded as” prong by (1) its rulings on mitigating measures, (2) its requirement that proving one was regarded as substantially limited in working must show that the employer considered the person as unable to perform either a class of jobs or a broad range of jobs in various classes, and (3) its redirection of the focus from whether the covered entity treated the person as having a substantially limiting condition to whether the covered entity was motivated by certain kinds of mistaken beliefs or misperceptions—a notoriously hard thing to prove. NCD issued a policy paper examining the origin, purpose, and meaning of the “regarded as” component of the definition of disability, and the implications of the Court’s interpretation and application of it. The Supreme Court’s Decisions Discussing the “Regarded As” Prong of the ADA Definition of Disability, paper No. 15 of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. Significance of the Court’s Action In addition to people who have a physical or mental impairment that substantially limits a major life activity and people who have a record of a substantially limiting condition, the ADA also provides protection from discrimination to individuals who are “regarded as having such an impairment.” The “regarded as” prong of the definition of disability represents an extremely broad approach that would extend statutory protection to anyone who has been excluded or disadvantaged by a covered entity on the basis of a physical or mental impairment, whether real or perceived. The Supreme Court had discussed the third prong of the definition of disability extensively and in expansive terms in its decision in the Arline case under the Rehabilitation Act of 1973. In Sutton v. United Airlines, the Court considered the application of the third prong under the ADA. The Court made three significant rulings concerning the interpretation of the “regarded as” prong of the definition of disability. First, the Court ruled that a person whose impairment is addressed satisfactorily by mitigating measures, but is nonetheless excluded from an activity covered by the ADA because of the person’s underlying impairment, does not have an actual disability and has not been regarded as having a disability. Second, the Court ruled that a person has not been regarded as being substantially limited in the major life activity of work unless the person can demonstrate that the employer considered her or him as being unable to perform either a class of jobs or a broad range of jobs in various classes. Third, the Court characterized the third prong in terms that are more narrow than it had traditionally been defined. In Sutton, the Supreme Court’s description of the third prong focused on a mistaken belief or “misperception” by a covered entity. The Court said: [I]t is necessary that a covered entity entertain misperceptions about the individual—it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting…. The definition of the third prong in ADA regulations and Section 504 regulations, in contrast, focuses on how individuals are treated by covered entities. The Supreme Court offered no support or justification for deviating from the language of the regulations and the expressed intent of Congress, to arrive at its narrow reading of the basic thrust of the third prong in the Sutton decision. The difference between the Court’s standard and that of the regulations is significant. The Sutton description calls for a showing of something in the mental state of a covered entity—a belief or perception. In addition, it is necessary to show that the belief or perception is wrong. Proving what an employer, state or local government agency, or the operator of a private business believes, thinks, or perceives is a difficult proposition. Unless the covered entity makes the mistake of articulating the depths of its prejudices or the exact nature of its motivation, it will be difficult to produce evidence of its state of mind. Examples of Impact The effect of the Supreme Court’s rulings greatly restricts the applicability of the “regarded as” prong and impedes significantly the ability of many plaintiffs to challenge the discrimination they have encountered. If, for example, a private company or a state or local government agency that offers tours of wilderness areas has a policy that excludes from its tours anyone who has diabetes or uses hearing aids, people whose diabetes is controlled by medication or for whom hearing aids ameliorate the effects would be hard-pressed to challenge their exclusion under the AD