Another test for the ADA

The expansion of coverage under the Americans with Disabilities Act during the last few years made it inevitable that the Supreme Court would face the task of establishing boundaries. It did so this week in a reasonable interpretation of the ADA as it relates to employment, at the same time raising sufficient questions to ensure it will visit this issue again soon.

The question for two nearsighted sisters who wanted to be pilots for United Airlines, a truck driver with functional vision in only one eye and an automobile mechanic with high blood pressure was whether correctable disabilities limited their opportunity to take part in a major life activity. Writing for the majority, Justice Sandra Day O’ Connor concluded that people with conditions that could be remedied did not qualify, unless an employer regarded their conditions as disabling for a large class of employment.

Justice O’Connor wrote that, an employer’s physical criteria are permissible so long as they do not cause the employer to make an employment decision based on an impairment, real or imagined, that it regards as substantially limiting a major life activity … . Instead, she concluded, The statute protects you from discrimination in a class of jobs, but it does not guarantee you a particular job.

What is or is not a substantial life activity is a matter of some debate, as the court found in the Bangor case of Bragdon v. Abbott last year. In that case, the justices agreed that Sidney Abbott’s rights under ADA were violated by Bangor dentist Randon Bragdon because he wanted to treat the woman infected by HIV in a hospital setting rather than in his office. The substantial limit to a major life activity for Ms. Abbott was her decision not to bear children, who would then face the risk of catching HIV.

In a dissenting opinion in that case, Chief Justice William Rehnquist wrote that Ms. Abbott’s argument taken to its logical extreme, would render every individual with a genetic marker for some debilitating disease ‘disabled’ here and now because of some possible future effects. The court split 5-4 on this decision, but the chief justice’s thought gained the majority this time, with Justice O’Connor writing that the law requires a person to be presently — not potentially or hypothetically — substantially limited.

Not getting a particular job does not bar a person from a class of employment in the future. The court properly distinguished between a physical characteristic that excluded someone from a specific employment opportunity and a disability that denied them access to a major life activity. At the same time, however, by relying on the standard of whether a disability is correctable, it created a circular condition in which the ability of an employer to accommodate a disability could relieve him or her from doing so because the accommodation or correction, by definition, could mean the employee no longer qualifies under ADA.

Whatever temporary confusion exists over the scope of the ADA should in no way diminish the important work it has done for people with disabilities. With the act still relatively new, the court is a natural place to sort out definitions, but Congress should also be alert to its role in deciding who qualifies and who does not.