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Under the ADA, We May All Be Disabled
Monday, May 17, 1999

Walter Olson

To understand the latest controversy concerning the Americans With Disabilities Act, the word to keep in mind is "unmitigated."

Karen Sutton and Kimberly Hinton want to be classed as legally disabled on account of their poor eyesight. There's just one catch: it seems the two sisters can see pretty much as well as the rest of us. Ah, their lawyers say, but that's when they're wearing glasses! Ditch the specs, and they're badly nearsighted. Last month, the Supreme Court heard arguments on whether the physical condition of persons wishing to sue under the ADA should be considered in its "unmitigated" state, that is, before any remedial steps have been taken.

The issue has plenty of applications. A second case before the court involves a United Parcel Service driver who wishes to qualify as "disabled" because he'd have a serious problem with high blood pressure if he stopped taking his medication—though in fact he does take it. Also watching with interest are people who'd be in medical trouble if not for their joint or heart-valve replacements.

In other realms of life we seldom rely on an "unmitigated" definition of disability. For example, if you're applying for disability-benefit checks, it's a bad idea to tell the claims processor that you want the income even though you're perfectly capable of holding down a job and performing common tasks provided you keep your glasses on or take your pills.

Then there's the question of where the concept of remediation stops. For those with impaired mobility or blood-sugar imbalance, prescribed exercise and nutrition may make the difference in avoiding a downward course. Are they entitled to legal rights based on the disability they'd suffer if they started defying doctors' orders? At the extreme, perhaps we should allow persons whose lives have been saved by their medications to exercise their right to ignore mitigation and instead hold themselves out as legally dead.

To be fair, the tangle of disability-definition gets a lot more complicated than this. Economist Carolyn Weaver says the government has used more than 20 different definitions of disability for various purposes. And the ADA's is among the vaguest of all.

At the Supreme Court last month, you might say the theme was unmitigated confusion. "I don't see how to get this statute to work," said Justice Stephen Breyer. "I'm at sea," confessed Justice David Souter. As Justice Antonin Scalia waved his glasses in the air—seven of the nine Justices wear glasses—the court seemed to realize in one magic moment that under the more liberal interpretations of the ADA every one of them could count as protected class members as could "a majority of Americans," as Justice Scalia said. That's a result at odds with the law's preamble, which cited 43 million as the number regarded as disabled then.

By this point, to be sure, it would seem late in the day to stop the majestic progress of disabled-rights law from bestowing a right to accommodation on everyone who differs physically, mentally, or behaviorally from the norm. Last year the Hartford Courant reported that nearly one in three high schoolers in affluent Greenwich, Conn., are now officially regarded as disabled, entitling them to various benefits ranging from individualized tutoring to laptop computers. Soon we may achieve a Lake-Wobegon effect in reverse, in which we will all get to be below average.

Unmitigated gall is more the style of a new study that claims that the ADA is actually unfairly tilted toward business defendants. Hyped by its sponsor, the American Bar Association's disability-rights commission, the study purportedly found employers winning 92% of ADA lawsuits and almost as high a share of Equal Employment Opportunity Commission proceedings; it got uncritical coverage from the Associated Press, USA Today and CNN.

Of course a different way to interpret the same numbers would be as indicating that 92% of ADA cases are shown unmeritorious. But in fact the numbers mean nothing at all because of the absurd way they were compiled. The summary judgment stage is often crucial in ADA disputes, and cases won by management at this stage were duly entered into the ABA database. And cases that went the other way? Well, um, it happened they were left out, except for the small minority of instances where the employer insisted on litigating to the end.

If the Associated Press or CNN had checked with some leading plaintiff's-side ADA authorities—never mind the defense—they might have gotten an earful about the defects of this study. Gary Phelan, co-author of a leading treatise on the ADA and a plaintiff's attorney who's handled more than 300 cases under the law, told the Connecticut Law Tribune that the ABA survey's exclusion of settled cases made it "not only misleading" but "flat out wrong." "Generally, around the country, ADA cases that have gone to trial have done very well," he told the paper. Peggy Mastroianni, ADA specialist at the EEOC, said the ABA report "overstates by far" employers' success at her agency.

Still, the ABA's efforts did divert attention from some other statistics less popular among disabled-rights advocates. Hardly anyone has been rude enough to mention, for example, that the rate of workforce participation among the disabled, which everyone expected would rise under the new law, has instead plunged to 29% from 33% in 1986. Also little-cited has been the report in the Dec. 24, 1997 Journal of the American Medical Association (JAMA) offering statistical support for the plausible notion that workers with sensory impairments get into more than their share of industrial accidents.

In both the new mitigation cases, employers are fighting back based on fears for traveler safety—not because of some sort of dislike of handicapped persons.

The two sisters are suing because they've been turned down for jobs as pilots at United Airlines. United declines to weaken its standard for pilots of 20/100 uncorrected vision or better, perhaps because it has considered the tendency of eyeglasses to smash or go flying in runway mishaps or conditions of extreme turbulence. Meanwhile, UPS declines to give the man with partially controlled hypertension a driving job because of the well-established correlation of that malady with traffic risks. (According to the Dallas Morning News, plaintiff Vaughn Murphy avoids taking the full dosage needed to keep his blood pressure down to normal because doing so makes him "stutter or forget things.")

The word, once again, is "unmitigated," as in "unmitigated disaster."

©1999 The Wall Street Journal

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