Righting the ADA

National Council on Disability

December 1, 2004
National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

Righting the ADA 

This report is also available in alternative formats and on the awarding-winning National Council 

on Disability (NCD) Web site (www.ncd.gov). 

Publication date: December 1, 2004 

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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

(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.)

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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 Clerk
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Acknowledgment 

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.
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Contents 

Executive Summary ...................................................................................................................... 11 

The ADA Restoration Act of 2004: Section-by-Section Summary 

The ADA Restoration Act of 2004: A Draft Bill 

I. Background and Overview................................................................................................... 29

A. Broad Bipartisan Support ................................................................................ 30 

B. Backing by Subsequent Presidents.................................................................. 34 

C. Will of the People............................................................................................ 35 

D. Impact of the ADA.......................................................................................... 36 

E. Judicial Resistance .......................................................................................... 39 

II. Problematic Interpretations of the ADA .............................................................................. 41 

A. Surprising Problems with the Definition of Disability.................................... 41 

B. Specific Problems Created by the Supreme Court’s Decisions 

Regarding the Definition of Disability............................................................ 44 

Issue: Consideration of Mitigating Measures in Determining Disability ..... 44 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

Issue: Substantial Limitation of a Major Life Activity................................... 46 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

Issue: Employment as a Major Life Activity.................................................. 47 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 
8

Issue: The “Class or Broad Range of Jobs” Standard.................................. 49 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

Issue: “Regarded As” Having a Disability ................................................... 51 

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 ............................... 56 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

Issue: Duration Limitation on What Constitutes a Disability ....................... 60 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

Issue: Per Se Disabilities............................................................................... 66 

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........................................................ 70 

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........................................................................................... 73 
9

C. Limitations on ADA Remedies Under Decisions of the Supreme Court........ 75 

Issue: Rejection of the “Catalyst Theory” in the Awarding of Attorney’s 

Fees and Litigation Costs.................................................................... 75

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 ....................................................................... 79 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

D. Safety Limitations Under ADA Decisions of the Supreme Court .................. 81 

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......................................... 81 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

E. Limitations on Reasonable Accommodations Under Decisions of the 

Supreme Court................................................................................................. 85 

Issue: Standard for Reasonableness of Reasonable Accommodations.......... 85

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 

Issue: Impact of Seniority Systems on Potential Accommodations ............... 92 

What the Supreme Court Did 

Significance of the Court’s Action 

Examples of Impact 
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III. Getting the ADA Back on Track: Remedial Legislative Approaches.................................. 99 

A. The Definition of Disability ............................................................................ 99 

1. Primary Recommended Approach to Repair the Definition of 

Disability—Back to Basics ................................................................. 99 

Proposed Statutory Revisions 

Purpose and Sources of the Proposed Language 

2. Addressing Specific Problematic Aspects of the Court’s Rulings.... 104 

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 

3. Secondary Option for Repairing the Definition of 

Disability—Restoring the Section 504 Approach ............................. 110 

Specific Provisions 

Related Amendments 

B. Restoring Remedies Available Under the ADA............................................ 114 

C. Legislative Approaches to Safety Limitations Under the ADA .................... 116 

D. Legislative Approaches to Limitations on Reasonable Accommodations 

Under Decisions of the Supreme Court......................................................... 117 

IV. Consolidating the Proposals—The ADA Restoration Act................................................. 123 

V. Matters Not Addressed in This Report............................................................................... 125 

VI. Conclusion.......................................................................................................................... 127 

Appendix—Mission of the National Council on Disability........................................................ 129 

Endnotes...................................................................................................................................... 133
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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. 
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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-bySection 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. 
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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 
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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 
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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. 
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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 
17

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; 
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(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 
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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: 
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“(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. 
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“(A) IN GENERAL.—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 IMPAIRMENT.—The term “physical or mental 

impairment” means— 
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“(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 IMPAIRMENT.—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 IMPAIRMENT.—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 GENERAL; and 

(2) by adding after the redesignated part (A) a new part (B) as follows: 

“(B) CONSTRUCTION.—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— 
23

(1) by redesignating the current definition as part (A)—EXAMPLES OF TYPES OF 

ACCOMMODATIONS.; and 

(2) by adding after the redesignated part (A) a new part (B) as follows: 

“(B) REASONABLENESS.—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.” 
24

(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 GENERAL., 

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 INTENTIONAL DISCRIMINATION.—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 DISPARATE IMPACT.—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 
25

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) CONSTRUCTION.—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) SUPPORTIVE 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. 
26

“(f) REGULATIONS IMPLEMENTING THE ADA RESTORATION 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) ATTORNEY’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) DEFINITION OF PREVAILING PARTY—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) RELATIONSHIP TO OTHER LAWS— 

(1) SPECIAL CRITERIA FOR PREVAILING 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. 
27

“(2) SPECIAL CRITERIA UNRELATED TO PREVAILING—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. 
28
29

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, 
30

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.” 
31

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 
32

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 
33

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
34

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 
35

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 
36

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 
37

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 
38

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 
39

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. 
40

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.
41 

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: 
42

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. 
43

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. 
44

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. 
45

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. 
46

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. 
47

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: 
48

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 
49

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 
50

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 
51

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 alltoo-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 
52

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 
53

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 
54

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 ADA if the 

Sutton framework is applied. Such people would not have an actual disability because their 

conditions do not substantially limit their major life activities in their mitigated state. Trying to 

prove that the covered entity had a mistaken belief or a misperception about their conditions 

would be troublesome unless the covered entity explained the rationale behind its policy. Absent 

such a disclosure, the excluded person would be left to speculate about the belief or perception 

behind the policy. Does the tour service think that hearing aids might fall out and cause a safety 

risk at some precarious point in the tour? Does the service have a perception that the altitude, 

temperature conditions, or strenuousness of the tour might cause the elevation or depression of 

blood sugar levels for individuals with diabetes, thus thwarting the controlling effects of 

medication? Are the tour operators concerned that other customers will be uncomfortable 

around people with such conditions? Is the tour service under a prejudiced misconception that 

people who have diabetes or use hearing aids have reduced intelligence? Do they consider that 

such people are genetically inferior and should not be allowed to participate in normal social 

endeavors? Do they have the misperception that participation by such people will increase 

insurance costs? Are they acting under the ridiculous impression that these conditions are 

contagious? These somewhat extreme examples of potential rationales demonstrate that if 

a covered entity remains silent about its motivation, proving what it believed or perceived 

about a condition will often be nearly impossible. 

If an ADA claimant seeks to demonstrate that an employer regarded her or him as substantially 

limited in regard to the activity of work, the task becomes even more difficult, because, in 

addition to demonstrating what the employer was thinking, the claimant must be able to show 

that the employer’s belief about the worker’s inability to perform jobs extended to a class or 

broad range of jobs. As long as the employer maintains that it merely regarded the worker as 

unable to perform only the particular job at issue, the worker will have great difficulty meeting 

the necessary burden of proof. Indeed, this approach virtually eliminates the chance to assert 

most “failure-to-hire” claims. Rejected applicants’ claims that they were unfairly excluded by 

medical screening or other discriminatory mechanisms despite their actual ability to perform 
55

the job will fail, so long as employers are able to convince courts that they only regarded the 

applicant as unable to perform a single job. 

The situation under the regulatory language, which focuses on whether one was “treated as” 

having a substantially limiting condition, is considerably different. By interpreting being 

“regarded as” as equivalent to being “treated as,” the formulation in the regulations removes the 

extremely subjective element of what was in the mind of the covered entity and instead looks at 

how the individual was treated. A covered entity treats a person as having a “substantially limited 

impairment” when it excludes or disadvantages the person because of an actual or purported 

condition. The Senate committee that approved the ADA summarized the effect of the third 

prong very aptly when it declared “[a] person who is excluded from any activity covered under 

this Act or is otherwise discriminated against because of a covered entity’s negative attitudes 

towards disability is being treated as having a disability which affects a major life activity.” 

Under this interpretation, whenever a covered entity excludes a person or treats a person worse 

than it otherwise would because of a physical or mental condition the person has or is believed 

to have, the covered entity has treated the person as having a substantially limiting impairment. 

In such circumstances the person has been “regarded as” having a disability, and it should not 

matter whether the person actually has the condition, or whether the condition actually results 

in a substantial limitation of a major life activity. If a covered entity treats the person as having 

a substantially limiting condition, that should be sufficient to establish disability under the 

third prong. 

The lower courts generally had not accorded the third prong of the definition the broad scope the 

regulatory language calls for; the Sutton ruling has accelerated this tendency. Subsequent to the 

issuance of the decision in Sutton, both the EEOC and DOJ reported that they were less likely to 

pursue certain cases involving claims that a person had been regarded as having a disability. The 

EEOC reported that, while it always had been reserved in its use of the third prong, after Sutton, 

“we tend to rely on the theory even less, in part because of the proof element that the employer 

must regard the individual as being substantially limited in a major life activity, and evidence of 

this perception is difficult to obtain.” It certainly is easier to marshal evidence of how one was 
56

treated by a covered entity than to demonstrate that the actions of the covered entity were fueled 

by a particular “mistaken belief” or “misperception.” 

Issue: Validity of and Deference to Be Accorded Federal Regulations Interpreting the ADA’s 

Definition of Disability 

What the Supreme Court Did 

The Supreme Court’s treatment of ADA regulatory provisions that interpret the definitions found 

at the beginning of the Act has been dramatically different from its treatment of provisions that 

address substantive requirements of the Act. In regard to non-definition-of-disability regulations, 

the Court has generally been willing to grant the high level of judicial deference termed 

“Chevron deference” for such ADA regulations. Likewise, the Court has, for the most part, 

accepted and been guided by such regulations. 

In regard to provisions of the ADA regulations that interpret elements of the definition of 

disability, the Supreme Court initially indicated (in its decision in Bragdon v. Abbott) that such 

regulations were entitled to Chevron deference. In later decisions (Sutton, Murphy, Kirkingburg, 

and Williams), however, the Court went out of its way to declare that it had doubts whether the 

ADA authorized any of the Federal agencies to issue regulations to implement the Act’s 

provisions regarding the meaning of “disability.” Accordingly, the Court said it would only 

assume, without deciding, that the regulatory provisions interpreting the definition of disability 

were valid, and it was not deciding what level of deference, if any, they should be accorded. 

Similarly, regarding its inclination to accept and follow the agencies’ positions on the 

interpretation of the components of the definition of disability, the Court has retreated from its 

initial broad view (in Bragdon) of the definition of disability. Consequently, the Court has tended 

not to follow the administrative agencies on issues in which they have taken an expansive view 

of elements of the definition. The Court has rejected the regulatory agencies’ positions on 

mitigating measures, questioned their stance on work as a major life activity, and adopted a more 

restrictive definition in lieu of the EEOC’s definition of “substantial limitation.” The Court has 

accepted the EEOC’s position in creating a one-job-is-not-enough standard that serves to make 
57

it harder for potential ADA plaintiffs to establish they have a disability that entitles them to 

ADA protection. Thus, the Court’s decisions have been particularly hostile toward provisions 

and regulatory commentary that take a broad or inclusive view of what constitutes a disability. 

NCD issued a policy paper examining the status the Court has conferred on the various sets 

of ADA regulations, and how solicitous or dismissive it has been in following the standards 

established in the regulations. The Supreme Court’s Decisions Regarding Validity and Influence 

of ADA Regulations, paper No. 16 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 

The Court has undermined the status of regulations that interpret the ADA’s definition of 

disability by (1) questioning the deference due to regulations implementing the ADA’s definition 

of disability; (2) suggesting that perhaps no agency has the authority to issue regulations 

interpreting the definitions section of the ADA; and (3) rejecting, questioning, and restricting 

particular elements of the regulatory interpretations. By inciting doubts about the legality and 

validity of the ADA regulations, the Court’s decisions have provided a rationale for 

noncompliance with such regulatory provisions and encouragement for defendants to challenge 

such provisions in ADA lawsuits. 

Examples of Impact 

The Supreme Court’s rulings have placed the regulations, which interpret the elements of the 

definition of disability, in something of a legal limbo in the lower courts. In light of the doubts 

expressed by the high court, most lower courts have hesitated to treat these regulatory provisions 

as valid, legally binding, and entitled to strong deference; at the same time, they have shied away 

from disregarding the regulations or ruling them invalid. Thus, these courts have found some 

middle ground between upholding the provisions and ruling them void, while echoing some of 

the reservations articulated by the Supreme Court. For example, the Fifth Circuit has taken the 

position that the EEOC’s ADA regulations that address the definition of disability “provide 

significant guidance,” but added, 
58

[W]e have never given the regulations Chevron deference, and recent decisions of 

the Supreme Court strongly suggest that the regulations are not entitled to such 

deference, because Congress delegated the authority to implement Title I of the 

ADA, which regulates employment, to the EEOC, 42 U.S.C. 12116, but Title I 

does not include 1210220 [which includes the definition of disability]. 

Some lower courts have avoided the dilemma of whether the definitions provisions of the 

regulations are valid by focusing on the parties’ failure to challenge the regulations. The Sixth 

Circuit declared in one case: 

The Supreme Court explained in Sutton v. United Air Lines, Inc., that “[n]o 

agency ... has been given authority to issue regulations implementing the generally 

applicable provisions of the ADA.... Most notably, no agency has been delegated 

authority to interpret the term ‘disability.’” The Sutton Court, however, stated that 

“[b]ecause both parties accept these regulations as valid, and determining their 

validity is not necessary to decide this case, we have no occasion to consider what 

deference they are due, if any.” Similarly, in this case, both [the plaintiff and the 

defendant] accept the regulations as valid and determining their validity is not 

necessary to decide the case; therefore, we assume the validity of the regulations 

for the purpose of deciding this case.21

Other courts have followed the same approach of following the definitional provisions of the 

regulations where the parties had not mounted a challenge to them.22

In the Second Circuit, the provisions of ADA regulations have been ruled to command “great 

deference,” in spite of the Supreme Court’s hesitancy.23 A federal district court in Maryland 

has suggested that in the face of the uncertainty engendered by the Supreme Court’s skeptical 

pronouncements about the definitional regulations, “[n]evertheless, ‘courts normally defer to 

the EEOC’s regulations and guidelines ... except where they are viewed to be contrary to law.’”24

A federal district court in Missouri found a novel, if illogical, way around doubts about any 

agency having authority to write regulations that implement the definitional provisions of the 

ADA. In a case involving job and service rights of an inmate in a state prison, the court relied 

on definitional provisions of the DOJ’s ADA Title III regulations (not applicable to state agency 

programs), which would appear susceptible to the same problem, because the DOJ was not 

expressly delegated authority over the definition of disability.25 Other courts have recognized 
59

something of a mixed message in the Court’s questioning of the validity of regulatory provisions 

while still quoting and relying on them.26

A federal district court in California discussed at some length the task facing lower courts as 

a result of the Supreme Court’s inconclusive reservations about the definitional provisions of 

ADA regulations: 

The Supreme Court has noted that although Congress gave the EEOC authority to 

promulgate Title I regulations, and the Department of Justice Title II regulations, 

no agency was given the authority to issue regulations implementing the generally 

applicable provisions of the ADA falling outside Titles I–V. Accordingly, the high 

court concluded that “no agency has been delegated authority to interpret the term 

disability.” Given the absence of congressional authority, the regulations and 

interpretive guidelines addressing the ADA’s definition of disability are not 

binding on this court. Because the Sutton Court did not address whether such 

regulations and guidelines, while not binding, are nevertheless entitled to 

deference, I must now address that issue. 

When, as here, Congress has not delegated specific legislative authority to an 

agency, the federal courts are free to reject the agency judgment and proceed 

without its guidance. This is the inevitable consequence of Article III reposing 

the judicial power of the United States in its courts. See Marbury v. Madison, 

5 U.S. (1 Cranch) 137 (1803). It has been said that a court should consider 

adopting the position taken in regulations and interpretive guidelines if the agency 

positions are “wise and correct.” Davis, 1 Administrative Law Treatise, 239 

(1994). The weight to be accorded an agency’s nonbinding interpretation depends 

upon the “thoroughness evident in its reasoning, its consistency with earlier and 

later pronouncements, and all those factors which give it power to persuade, if 

lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). 

Prior to Sutton, the Supreme Court had noted the bifurcated responsibility for 

administering the ADA. It observed, however, that “the well-reasoned views of 

the agencies implementing ... [the ADA] constitute a body of experience and 

informed judgment to which courts and litigants may properly resort for 

guidance.” Bragdon v. Abbott, 524 U.S. 624 (1998). Thus as a general 

matter, deference to the EEOC’s guidelines appears appropriate.... [T]he 

relevant regulations present what appears to be a question as to whether 

they are “well reasoned” and thus “wise and correct.”27
60

The district court judge concluded that “[f]rom all the above, it appears relatively clear that this 

court should be cautious in adopting the EEOC’s ... construction of disability, but, in light of all 

the circumstances surrounding the issue before it, ‘I conclude that until directed otherwise it is 

appropriate for district courts to continue to give deference to the EEOC regulation.’”28

The overall situation is that lower courts are grappling in various ways to determine how much 

weight to give to the provisions of ADA regulations that address the elements of the definition of 

disability as a result of the Supreme Court’s inconclusive second-guessing of the validity and 

persuasiveness of such provisions. And this situation provides at least a semblance of a rationale 

for covered entities to resist following the provisions, ultimately weakening the impetus for 

vigorous implementation of the ADA. 

Issue: Duration Limitation on What Constitutes a Disability

What the Supreme Court Did 

In its decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Court recited 

a requirement established in the EEOC’s ADA regulation that an “impairment’s impact must 

also be permanent or long term” to constitute a disability. In doing so, although the Court 

had expressed reservations about what persuasive authority should be afforded the EEOC 

regulations’ definitions provisions, the Court’s reference and citation to the duration 

limitation appeared to offer some measure of support or approval for the EEOC position. 

Significance of the Court’s Action 

In defining the term “substantially limits” in its Title I regulation, the EEOC provided that the 

following factors are to be considered, in addition to the “nature and severity of the impairment,” 

in determining whether an individual’s major life activity is substantially limited: 

(i) The duration or expected duration of the impairment; and 

(ii) The permanent or long-term impact, or the expected permanent or 

long-term impact of or resulting from the impairment. Id., 1630.2(j)(2). 
61

In its Interpretive Guidance, the EEOC elaborated that “temporary, non-chronic impairments 

of short duration, with little or no long-term or permanent impact, are usually not disabilities.” 

The ADA contains a legal requirement that nothing in the Act is to be construed to apply a lesser 

standard than standards applied under the nondiscrimination provisions of the Rehabilitation Act 

of 1973, and Section 504 regulations do not contain any restrictions regarding the duration a 

condition must have to constitute a disability. The regulatory guidance accompanying the original 

Health, Education, and Welfare regulations (and the current regulations of the Department of 

Health and Human Services and the Department of Education), which the Supreme Court has 

said ADA interpretation must be consistent with, indicate in regard to the definition of 

“individual with a disability” that the respective agency “has no flexibility within the statutory 

definition to limit the term to persons who have those severe, permanent, or progressive 

conditions that are most commonly regarded as handicaps.” 

The language of the ADA as proposed and as enacted never contained any limitation or exclusion 

for “temporary” conditions or any other language imposing or suggesting a duration-of-impairment 

restriction on conditions that might constitute disabilities under the legislation. Nor did the 

legislative history of the ADA offer any support for such a limitation. In creating a duration 

standard and excluding temporary conditions, the EEOC departed from the position of its sister 

agencies; neither the Department of Justice nor the Department of Transportation ADA regulations 

include a duration standard. In its Title II and Title III Technical Assistance Manuals, the DOJ 

explicitly rejected such a standard by including the following language in the manuals: “Are 

‘temporary’ mental or physical impairments covered by [Title II/Title III]? Yes, if the impairment 

substantially limits a major life activity.” The Department of Transportation explained that it did 

not need to include the words “temporary or permanent” in its regulation, because in its view, 

“the terms are unnecessary because any condition that meets the criteria of the definition, 

regardless of its duration, is a disability.” 

The EEOC’s duration limit can result in a denial of statutory protection from discrimination 

for an employee when recovery is more rapid and the impact on the employer’s operations are 
62

reduced. In the case of a broken leg, for example, the EEOC has indicated that its approach 

would permit an employer to fire an employee whose broken leg took eight weeks to heal but 

would provide protection from discrimination if it took, for example, four months or more to 

heal. It is dubious reasoning that denies statutory protection from discrimination for an employee 

when recovery is more rapid and the impact on the employer’s operations are reduced, but 

affords it if the disruption takes longer and thus the burden on the employer is greater. It is 

difficult to understand why an employer is permitted to fire a person if a temporary disability will 

cause the worker to miss some work, but disallow the employer to fire the person if a condition 

will force the worker to be out of work for a longer time, protecting him or her under the ADA, 

and then the employer is not permitted to fire the person.

NCD has criticized the EEOC for creating such a duration limitation when there is no basis for it 

in the statutory language or legislative history of the ADA, nor in other Federal agencies’ ADA 

regulations. See, for example, NCD’s Promises to Keep: A Decade of Federal Enforcement of 

the Americans with Disabilities Act 221-222 (2000). NCD has challenged both the rationale and 

purported basis in case law of the EEOC’s approach, and recommended that EEOC should issue 

a supplement to its Title I regulation to remove the duration limitation. Before the Williams

decision, several courts had rejected the notion that a temporary disability is not a disability 

under the ADA and Sections 501, 503, and 504.29 Such efforts to reject or redirect the EEOC’s 

stance have been undercut by the Supreme Court’s gratuitous mention of the EEOC’s duration 

provision without expressing any reservations. The Court’s reference to the duration limitation 

appears to offer some measure of support or approval for the EEOC position, and, although it 

was nonbinding dicta in the Williams case, it sends a bad message to the EEOC, the lower courts, 

and employers that the Supreme Court has no problem with the EEOC invention of a durationof-impairment requirement for ADA plaintiffs to meet and for defendant employers to contest. 

Examples of Impact 

Lower courts’ applications of a duration limitation on what constitutes a disability have led to a 

variety of conditions, many quite serious, being ruled not to be disabilities, including epilepsy;30

breast cancer, lumpectomy and radiation treatment;31 cancer on shoulder, bone marrow tests, and 
63

chemotherapy treatments;32 psychological reaction to having bladder cancer;33 “dysthymia, a 

chronic depressive disorder characterized by intermittent bouts of depression”;34 arthritis hampering 

ability to walk;35 severe abdominal pain necessitating stomach surgery;36 painful back injury 

(“trapped nerve”);37 and kidney obstruction, surgical treatment, periodic bladder infections, sharp 

pain, and fever.38 These seem a far cry from the “transitory illnesses” mentioned in Stevens v. 

Stubbs39—the case precedent relied on by the EEOC to justify its temporary impairment 

exclusion40—and from the “simple infected finger” mentioned in ADA congressional reports.41

Other examples may help to illustrate the harsh and inequitable rulings that result from the notion 

that conditions characterized as “temporary,” or that have not been proven to be long term or 

permanent, are not disabilities. In Sutton v. New Mexico Department of Children, Youth and 

Families,

42 the plaintiff had degenerative arthritis in her hip, which had deteriorated to the point 

that she could walk only by using a walker.43 She had surgery to address the condition and, while 

recuperating, was allegedly terminated by her employer because of her disability.44 The court 

granted the employer’s motion to dismiss the plaintiff’s ADA action on the grounds that the 

plaintiff had not made sufficient allegations that her condition was substantially limiting. In her 

complaint, the plaintiff had described her “condition, her use of medication, her use of a walker, 

the occurrence of surgery, her physical inability to work for four weeks, and her ability to work 

only four hours per day for some unspecified period thereafter.” The court declared, however, 

that “[n]o inference of permanence or long-term impact, and thus of substantial limitation, can 

be drawn from these allegations.”45

In explaining this severe outcome, the court proclaimed that “the paramount interest of Congress 

in enacting the ADA was to protect the truly disabled.”46 It would surely come as a big surprise 

to all of the members of the 101st Congress, which enacted the ADA, to find that a person in 

Ms. Sutton’s circumstances was not protected by the statute. 

In Soileau v. Guilford of Maine, Inc.,

47 the plaintiff had “dysthymia, a chronic depressive 

disorder characterized by intermittent bouts of depression.” During a bout of depression caused 

by the condition, Soileau was allegedly terminated from his job because of his disability, 
64

immediately after he requested an accommodation.48 The defendant employer successfully 

moved for summary judgment on the plaintiff’s ADA claim.49 The First Circuit affirmed, ruling 

that while Soileau’s doctor had concluded that his “underlying disorder (dysthymia) will be a 

life-long condition, Soileau has failed to adduce any evidence that his impairment—the acute, 

episodic depression—will be long term.”50 The court noted that the plaintiff’s last previous bout 

of depression “required only a five-week work absence.”51

Another example of the problematic and pernicious results of the exclusion of temporary 

conditions from the definition is provided by Rakestraw v. Carpenter Co.,

52 a case involving 

a truck driver who incurred a back injury while performing job duties.53 The court noted that 

“it is evident from the record that Rakestraw’s injury was painful and required frequent medical 

attention.”54 This situation continued for nearly 1 year and 10 months until Rakestraw was 

discharged, allegedly because the company considered it inconvenient to accommodate his 

condition by adjusting driver assignments to avoid his having to make deliveries involving 

heavy lifting.55

Although even the EEOC has indicated that a broken leg that requires 11 months to heal is a 

disability,56 the Rakestraw court found a duration of twice that much for Rakestraw’s condition 

insufficient. Sometime after he had been terminated, Rakestraw’s doctors conducted additional 

tests, including a third MRI, and discovered a “trapped nerve.”57 This diagnosis resulted in back 

surgery that corrected the problem and led to Rakestraw’s full recovery.58 The fact that the 

plaintiff had recovered completely by the time the court considered the case convinced it that 

“the relatively short duration” of the plaintiff’s injury rendered its limitations “insubstantial.”59

The court declared, “The evidence in this case demonstrates that surgery has corrected Rakestraw’s 

back injury, and the impairment no longer exists. Thus, a finding that the injury constitutes a 

disability would be contrary to the weight of relevant precedent.”60 It added that the plaintiff’s 

condition “was not a significant barrier to employment because the injury was not long lasting.”61

The Rakestraw court noted that it was “sympathetic to the fact that Mr. Rakestraw lost his job” 

and acknowledged that the employer’s actions “may demonstrate a lack of sensitivity and 
65

compassion,”62 but believed that such sentiments “must be tempered with the legal reality that 

not every decision to terminate an employee gives rise to a federal cause of action.” Ultimately, 

the court ruled that an injury lasting 1 year and 10 months was not of sufficient duration to 

constitute a disability.63

The fact that the cause of Rakestraw’s incapacity was only discovered after he had been 

terminated underscores a serious flaw in the temporary disability exclusion rationale. Suppose 

that doctors had not conducted a third MRI until 10 years after his termination, or that the 

underlying cause of the severe back pain had never been discovered. Presumably, his condition 

could not have been deemed “temporary” in those circumstances. And yet the conduct of the 

employer, and what the employer and the employee knew about the condition at the time of the 

discharge would have been exactly the same. How can the legality of someone’s conduct at point 

A in time depend on what occurs at some later point B in time? Does the outcome depend on 

getting a court to decide the case before improvement in the condition occurs? If a court decides 

a nondiscrimination case in favor of the plaintiff, would the court have to reopen the proceedings 

if it turned out that the plaintiff’s condition improved or was cured at some later time? Obviously 

such questions are absurd and the only relevant question is whether the plaintiff was discriminated 

against on the basis of disability at the time the alleged discrimination occurred. Once a person 

has been subjected to discriminatory treatment because of disability, it appears irrelevant how 

long thereafter the plaintiff’s condition persists. 

Similar problems confront plaintiffs who have a condition of indefinite duration, are discharged 

because of the condition, and try to prove, under the third prong of the definition of disability, 

that the employer regarded them as having a substantial impairment. They must try to prove, by 

medical evidence and other experts, that (1) their conditions are long term, when in fact they and 

their doctors may not know how long the conditions will continue and they may hope that they 

will soon improve, or (2) their employers regarded their conditions as permanent. The latter 

requires a terminated employee to prove something within the mind of the employer, and 

“reward[s] employers for doing one thing and saying another.”64
66

A bizarre twist was put on the temporary disability issue by a federal district court, which ruled 

that a trucking company employee who incurred a serious back injury was not eligible for 

accommodation in a modified work program provided for injured employees because the 

program was limited to employees whose disabilities were temporary and the employer regarded 

this employee’s condition as permanent.65 Such a ruling, coupled with the exclusion of temporary 

conditions from the definition of disability, would mean that an employee with a disabling 

condition would not be entitled to a reasonable accommodation if the condition is temporary 

because such conditions are not protected. If the condition is permanent, however, the employee 

is not eligible anyway because the accommodation is only available to those having a temporary 

condition. 

A similar choice between the frying pan and the fire was imposed by the court in Johnson v. 

Foulds, Inc.,

66 where the plaintiff sought medical leave as a reasonable accommodation; the 

court declared: 

[T]he implication of the plaintiff’s request for medical leave as a result of her 

mental depression is that once she has recovered, she will be able to return to 

work. If that is so, then her impairment must be considered to be a temporary 

condition that does not meet the requirements of a disability under the ADA. 

On the other hand, if the impairment is not of short duration, then her request 

for medical leave appears to be a concession that she cannot work.67

Issue: Per Se Disabilities

What the Supreme Court Did 

The Court has accepted the concept of per se disabilities, but has yet to name one. In its decision 

in Bragdon v. Abbott, the Court came very close to granting per se status to HIV infection. In 

Kirkingburg, the Court recognized that “some impairments may invariably cause a substantial 

limitation of a major life activity,” thus endorsing the idea of per se disabilities. In Kirkingburg

and Williams, the Court ruled that the conditions at issue in those cases did not merit per se

disability status, but it did not reject the possibility of other conditions deserving to be considered 

per se disabilities. The Court has also reduced the pool of potential per se disabilities by its 
67

rulings on mitigating measures, eliminating such conditions as epilepsy, diabetes, and manic 

depressive syndrome that might otherwise appear to merit such status. 

Significance of the Court’s Action 

Designation of a condition as a per se disability amounts to a recognition that, by its nature, the 

condition always substantially limits at least one major life activity and therefore is a disability 

under the ADA. Alternatively, if prejudice toward and stigmatization of the condition is so 

widespread that an individual proof of personal limitation is unnecessary, then it may also be 

designated as a per se disability. Such a designation would be of considerable practical value for 

ADA claimants having the condition. The Supreme Court’s endorsement of the concept without 

granting such status to any specific impairments has left the law on this issue in flux. In the 

absence of the Supreme Court having named any conditions as meriting such designation, the 

lower courts have been reluctant to rule conditions to be per se disabilities. Trial courts have 

little motivation to go out on a limb and risk being second-guessed on appeal by declaring a 

condition a per se disability, when they can simply insist on an individualized showing of 

substantial limitation of a major life activity of the particular plaintiff. Because of this reticence 

in the trial courts, appellate courts are rarely asked to review findings of per se disability. One 

clear legal signpost the Supreme Court has given is that conditions responsive to mitigating 

measures are not eligible to be named per se disabilities. Overall, the Court’s decisions have had 

an inhibiting effect on any inclination of lower courts to find conditions to meet the criteria for 

per se disability status. In this situation, it will be difficult for conditions to achieve per se

disability status without some action by the Court, enforcement agencies, or the Congress. 

NCD issued a policy paper examining the meaning and significance of the per se disabilities 

concept, what the Supreme Court has said about it, and the implications of the Court’s 

declarations. The Supreme Court’s ADA Decisions and Per Se Disabilities, paper No. 12 

of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at 

http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 
68

Examples of Impact 

The lower courts’ reluctance to take the lead in recognizing particular conditions as per se

disabilities, when the Supreme Court has yet to do so, has played out in numerous lower court 

decisions. Thus, various courts at the trial and circuit court of appeals levels have not granted 

per se disability status to conditions such as alcoholism,68 drug addiction,69 heart disease,70

seizures,71 diabetes,72 cancer,73 hemophilia,74 Tourette’s Syndrome,75 asthma,76 Meniere’s 

disease,77 Hepatitis C,78 and Attention Deficit-Hyperactive Disorder (ADHD).79 One federal 

district court judge even went so far as to declare that there are no conditions that constitute 

per se disabilities,80 a position sharply inconsistent with the Supreme Court’s statements on 

this issue as discussed above. 

Two federal district courts have taken the step that the Supreme Court approached but did not 

quite take in Bragdon v. Abbott—the designation of HIV infection as a per se disability,81 but 

other courts have declined to reach such a conclusion.82 Although decided before the Supreme 

Court issued its ruling in Bragdon v. Abbott, the ruling in one such case, U.S. v. Happy Time Day 

Care Center,

83 illustrates some of the difficulties that arise in the absence of per se status. The 

court noted that “there is considerable support for the notion that HIV infection is a per se

disability under the ADA and the Rehabilitation Act,” but nonetheless opted to scrutinize the 

affected person’s condition of HIV infection on an individualized basis. Having chosen to do so, 

the court was then forced to grapple with such thorny questions as the significance of procreation 

and sexual activities in the life of a three-year-old child; whether such activities as caring for 

one’s self, growing, socializing, and living do or do not constitute major life activities; and to 

what extent such activities are limited by HIV infection in a young child. Such troublesome 

complexities could have been avoided if HIV infection had been treated as a per se disability, 

either because it substantially limits major life activities either inherently or because prejudice 

and stigmatization regarding HIV is prevalent throughout our society. 

In the absence of recognition that HIV infection is always a disability, however, at least one 

court has ruled that a plaintiff’s HIV infection and AIDS did not qualify as a disability under the 

ADA. In the case of Gutwaks v. American Airlines,

84 a federal district court ruled that an airline 
69

employee with full-blown AIDS was not substantially limited in any major life activity. This 

appears to be an extreme and dubious example of the application of the ADA’s definition of 

disability, but it illustrates the risks that a litigant incurs in trying to establish the existence of a 

disability when the terms of the ADA definition are interpreted strictly. This ruling that a person 

with AIDS did not have a disability was particularly startling in light of the Supreme Court’s 

earlier ruling in Bragdon v. Abbott that the plaintiff’s asymptomatic HIV infection constituted a 

disability under the ADA. Given that the plaintiff in Gutwaks had a more advanced form of the 

condition than Ms. Abbott, it seems illogical that she had a disability under the ADA, but he did 

not. In Bragdon, the Supreme Court premised its decision on the effect of Ms. Abbott’s condition 

on her major life activity of reproduction, while in Gutwaks the court was heavily influenced by 

the fact that Mr. Gutwaks indicated that he had no interest in fathering children. 

In addition to HIV, the ADA committee reports and enforcement guidance have suggested a 

number of other conditions as likely candidates for per se disability status. Among these are 

the following: 

• paraplegia85

• deafness86

• hard of hearing/hearing loss87

• lung disease88

• blindness89

• mental retardation90

• alcoholism91

A strong argument can be made that all of the physical or mental impairments in this list, by 

definition, “invariably cause a substantial limitation of a major life activity” (Kirkingburg). 

Thus, paraplegia automatically entails a substantial limitation on major life activities of walking 

and performing manual tasks. Deafness and other hearing impairments involve a substantial 

limitation on the major life activity of hearing. Lung diseases substantially limit the major life 

activity of breathing. Blindness engenders a substantial limitation on the major life activity of 

seeing. The condition of mental retardation denotes a substantial limitation on learning and 

thinking. Chronic inability to refrain from drinking to intoxication is the essence of the condition 

of alcoholism, and such intoxication causes substantial limitations on various major life activities 
70

such as thinking (and remembering), walking, performing manual tasks, and others. If this is true, 

such conditions (along with various others that might also qualify) could be accorded per se

disability status. Yet the courts have not yet so ruled. 

Three other conditions—epilepsy,92 diabetes,93 and manic depressive syndrome94—were also 

deemed worthy of per se disability status in ADA committee reports and the EEOC Compliance 

Manual, but for many individuals these conditions can be mitigated through medication, dietary 

restrictions, and other means. In light of the Supreme Court’s decisions requiring the assessment 

of disability to take mitigating measures into account, currently it is unlikely that any court would 

find these conditions to qualify automatically as disabilities under the ADA. Indeed, dicta in the 

Court’s opinion in Sutton indicate that “find[ing] all diabetics to be disabled” would be “contrary 

to both the letter and the spirit of the ADA.”95 Subsequent to the Supreme Court’s rulings on 

mitigating measures, at least two federal courts found that plaintiffs whose diabetes was 

controlled (at least to some degree) by blood sugar tests, insulin injections, and controlled diet 

had failed to establish that they had a disability under the ADA.96 Similarly, at least three lower 

courts have ruled that, in light of mitigation through medication, particular plaintiffs’ conditions 

of epilepsy did not qualify as a disability under the ADA definition.97 One of those courts 

conceded that before the Supreme Court’s ruling in Sutton “a person [with] epilepsy would 

receive nearly automatic ADA protection.”98 Thus, some likely potential contenders for per se

status, based upon ADA committee reports and regulatory commentary, in effect, have been 

removed from the pool of potential per se disability candidates as a result of the Court’s rulings 

on mitigating measures. 

Issue: Restrictive Interpretation of the Definition of Disability to Create a Demanding 

Standard 

What the Supreme Court Did 

In its decisions in the cases of Sutton, Murphy, and Kirkingburg, the U.S. Supreme Court made 

rulings that narrowed the interpretation of the concept of “disability” as used in the ADA. In 

Williams, the Court expressly declared what those prior decisions had strongly suggested—that 
71

the Court was embracing a view that the elements of the definition of “disability” in the ADA 

“need to be interpreted strictly to create a demanding standard for qualifying as disabled ....”99

NCD issued a policy paper examining the language and legislative history of the ADA, and the 

legal principles in place at the time it was enacted, bearing on how narrowly or broadly Congress 

intended the definition of disability to be construed, and comparing the expressed congressional 

intent with the Court’s narrow construction of the definition. Broad or Narrow Construction of 

the ADA, paper No. 4 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 many ways, the most important, far-reaching, and damaging of the Court’s rulings on the 

definition of disability is its announcement that the ADA’s definition of disability should be 

interpreted narrowly to create a demanding standard for eligibility for the Act’s protection. It 

explains and provides the underlying rationale for the problematic rulings on the meaning of 

disability discussed in previous subsections of this report. It also creates an ominous atmosphere 

for resolving future questions regarding the definition of disability. The Court’s position that the 

definition of disability is to be construed narrowly represents a sharp break from traditional law 

and expectations. It ignores and contradicts clear indications in the statute and its legislative 

history that the ADA was to provide a “comprehensive” prohibition of discrimination based on 

disability, and legislative, judicial, and administrative commentary regarding the breadth of the 

definition of disability. It also flies in the face of an established legal tradition of construing civil 

rights legislation broadly. Congress knowingly chose a definition of disability that to that time 

had been interpreted broadly in regulations and the courts; it was entitled to expect the definition 

to continue to receive a generous reading. In crafting the ADA, Congress did not treat 

nondiscrimination as something “special” that can be spread too thin by granting it to too many 

people. Unlike disability benefits programs, such as Social Security Income (SSI) and Social 

Security Disability Insurance (SSDI), which are predicated on identifying a limited group of 

eligible persons to receive special benefits or services that other citizens are not entitled to 

obtain, and for which the courts have sought to guard access jealously, the ADA is premised on 
72

fairness and equality, which should be generally available and expected in American society. 

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 Court put forth a very weak rationale for its “strict” and “demanding” approach to the 

definition of disability. Primarily, it pointed to an ADA finding that 43 million people have 

disabilities. The Court’s use of the 43 million figure, including its ill-founded assumptions 

that Congress intended the figure to have a degree of mathematical exactitude and only that 

number of people were to be protected by the ADA, are addressed in a policy brief in the 

Righting the ADA series. Significance of the ADA Finding That Some 43 Million Americans Have 

Disabilities, paper No. 3 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 

In the decisions it has made on the definition of disability, the Court has fully lived up to its 

declared intention to interpret strictly the elements of the definition to turn it into “a demanding 

standard for qualifying as disabled.” The Court has made good on its objective of restricting 

ADA protection in its (1) position on mitigating measures, (2) interpretation of “substantial 

limitation” and “major life activities,” (3) expression of misgivings over whether working is 

a major life activity, (4) application of the EEOC’s “class or broad range of jobs” standard 

regarding the activity of working, (5) questioning whether any Federal agency has authority to 

issue regulations regarding the definitions section of the ADA, (6) unnecessary reference to a 

duration limitation on disability, and (7) failure to designate any conditions as per se disabilities 

and elimination of some conditions from such a prospect. In each of these instances, the Court 

has chosen a narrow, restrictive reading of the scope of the definition of disability instead of a 

broader, more benevolent reading. In his dissenting opinion in the Sutton case, Justice Stevens 

contended that “in order to be faithful to the remedial purpose of the Act, we should give it a 

generous, rather than a miserly construction.” In the Williams decision, the Court openly opted 

for the “miserly” approach. 
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Principles and Assumptions Regarding the Definition of Disability When the ADA 

Was Enacted That Have Been Disregarded or Contradicted by the Supreme Court 

The impact of the problematic decisions of the Supreme Court regarding the definition of 

disability can be summed up by identifying the important ways in which the Court has deviated 

from expectations that were in place when the ADA was negotiated, debated, and enacted. 

Such expectations were based on the law and regulations in effect at the time and on clearly 

stated positions in the ADA’s legislative history. The following represent significant tenets and 

assumptions of the ADA’s drafters, Congress, and the President who signed the Act into law, 

which the Supreme Court has not respected: 

1. To ensure that the ADA achieves its objective of prohibiting pervasive discrimination 

comprehensively, the elements of the definition of disability would be interpreted liberally 

to encompass, within the ADA’s protection, the full gamut of people who encounter 

discrimination on the basis of disability. 

2. Determinations of the existence of impairment and whether an impairment substantially 

limits a major life activity would be made without regard to mitigating measures such as 

medicines or assistive or prosthetic devices and techniques that an individual does or might 

make use of. 

3. The phrase “major life activities of such individual” refers to activities that are important in 

the life of the individual claiming ADA protection, or that are important to most people in 

the general population and would be important in the individual’s life if a physical or 

mental impairment did not preclude the individual from performing the activity. For all 

individuals, it would include all significant endeavors of ordinary daily and occupational 

life. Under this approach, there would be little question that major life activities would 

include such activities as caring for one’s self, including personal-care tasks; lifting, 

reaching, grabbing, holding, and performing manual tasks, including housework and 

household chores, and manual job tasks; walking and running; seeing; hearing; speaking; 

breathing; thinking, learning, and concentrating; working; dating and engaging in sexual 

relations; procreation; sleeping; interacting and communicating with other people; reading 

and writing; driving a motor vehicle; and engaging in physical exercise. 

4. Working is a major life activity. 

5. The term “substantially limits” refers either to significant restriction, in comparison with 

the average member of the general population, as to the condition, manner, or duration 

under which the individual can perform an activity, or to total inability to perform the 

activity. 
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6. Showing that an individual is precluded, because of a physical or mental impairment of the 

individual or the employer’s perception of a physical or mental impairment of the 

individual, from performing essential tasks of a particular job position the individual 

occupies or applies for is sufficient to demonstrate that the individual is substantially 

limited in regard to the major life activity of working. 

7. The “regarded as” prong of the definition of disability would be interpreted broadly to 

extend statutory protection of the ADA 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. 

8. Each of the Federal agencies charged with issuing regulations implementing the various 

Titles of the ADA or provisions of a Title would be authorized to include provisions that 

apply the definition of disability to activities subject to the regulations, including regulatory 

clarifications or interpretive guidance arising from the differing contexts and purposes of 

the particular subject of the regulations. Properly issued regulations promulgated by the 

Federal agencies pursuant to their ADA implementation authority, including provisions 

relating to the definition of disability, would be entitled to Chevron deference. 

9. If a covered entity excludes or disadvantages an individual because of an actual or 

perceived physical or mental impairment, the fact that the impairment is temporary should 

not matter; duration of an impairment is not a relevant consideration if an impairment 

otherwise substantially limits a major life activity. 

10. Impairments that invariably cause a substantial limitation of a major life activity, either 

inherently or because of general prejudice and stigmatization, would be designated per se

disabilities, but no negative presumption would arise to reduce the chances that other 

conditions would be designated per se disabilities or found to be disabilities in the 

circumstances of particular cases. 

11. The ADA finding that 43 million Americans have disabilities would serve to indicate that 

the ADA was addressing a problem of sizable dimensions and to give a rough idea, an 

order-of-magnitude estimate, of the constituency that, because they encounter 

discrimination in their daily lives because of particularly severe and obvious impairments, 

would readily support and laud the enactment of such a law. The figure was not intended to 

be subjected to mathematical partition for deductions about what types of conditions the 

ADA protects. The 43 million figure does not represent the total number of people who 

would be protected by the ADA. The “record of” and “regarded as” prongs of the definition 

of disability provide protection to all Americans who are discriminated against whether 

they have any actual impairment or not. The ADA’s focus is on eliminating discrimination 

and doing so comprehensively, not on making technical distinctions about how disabled the 

plaintiff is, causing more classifying and labeling of individuals, as a precondition to being 

protected by the Act and thus entitled to being treated equally. 
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C. 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 

In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human 

Resources, the Supreme Court rejected the “catalyst theory” that most lower courts had applied 

in determining the availability of attorney’s fees and litigation costs to plaintiffs in cases under 

the ADA and other civil rights statutes, and under other federal laws that authorize such 

payments to the “prevailing party.” 

Significance of the Court’s Action 

The ADA contains a provision expressly authorizing fees and costs of litigation to be paid to 

the prevailing party in any action or administrative proceeding brought under the Act. Various 

other federal laws, the Civil Rights Act of 1964, the Fair Housing Amendments Act of 1988, the 

Voting Rights Act Amendments of 1975, the Civil Rights Attorney’s Fees Awards Act of 1976, 

and quite a few others, also authorize the awarding of attorney’s fees to the “prevailing party.” 

Until the Supreme Court made its ruling in the Buckhannon case, a plaintiff whose lawsuit 

motivated a defendant to change its conduct and to cease performing actions that the plaintiff 

claimed were violations of the ADA or one of these other laws could recover attorney’s fees and 

certain litigation expenses from the defendant under the “catalyst theory.” Under the “catalyst” 

approach, the courts considered “prevailing party” as meaning something broader than simply a 

party that wins a final judicial ruling in its favor. A plaintiff was considered a “prevailing party” 

eligible to be awarded attorney’s fees if the lawsuit achieved its desired result because it brought 

about a voluntary change in the defendant’s conduct. The idea was that in circumstances where 

the filing of a lawsuit caused a defendant to change its ways and cease some action whose 

legality had been challenged, the plaintiff had achieved the goal of the lawsuit, and was the 

“prevailing party.” If filing a lawsuit proved to be a catalyst for the defendant’s compliance, the 

plaintiff had prevailed even if the legal proceedings never reached the formal decision stage. 
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The lower courts imposed conditions for a party to qualify as a prevailing party under the catalyst 

theory: (1) a plaintiff had to show that the defendant provided some of the benefit sought by the 

lawsuit; (2) a plaintiff had to demonstrate that the suit stated a genuine claim—one that was at 

least “colorable,” not frivolous, unreasonable, or groundless; and (3) the plaintiff had to establish 

that the suit was a “substantial” or “significant” cause of the defendant’s action providing relief. 

In Buckhannon, the Supreme Court, by a 5-to-4 vote, scrapped the “catalyst theory.” The Court 

decided that the critical factor in attorney’s fees cases was whether there was a “judicially 

sanctioned change in the legal relationship of the parties.” It held that a defendant’s voluntary 

change in conduct, even if it accomplishes what the plaintiff sought to achieve by the lawsuit, 

lacks the necessary “judicial imprimatur” on the change. 

The result of the Buckhannon decision undercuts incentives for public interest lawyers and the 

private bar to undertake many ADA cases. In her dissenting opinion in Buckhannon, Justice 

Ginsburg predicted that “the Court’s constricted definition of ‘prevailing party,’ and consequent 

rejection of the ‘catalyst theory,’ [will] impede access to court by the less well-heeled, and 

shrink the incentive Congress created for the enforcement of federal law by private attorneys 

general.” Her prediction has proved all too accurate. As a consequence of the Buckhannon ruling, 

defendants have a significant motivation to settle promising ADA cases informally rather than by 

consent decree or to make the cases moot by voluntary compliance, so that they can avoid paying 

attorney’s fees. This possibility makes many ADA cases less desirable to private attorneys and 

more demanding of scarce resources of public interest advocacy agencies. Attorneys are aware 

that there is a good chance that promising ADA cases will be settled informally or mooted out 

and attorney’s fees precluded, so, unless significant monetary damages are at issue or the plaintiff 

is well-to-do and can afford to pay fees, there is little chance the attorney will make any money 

on such cases. The risk to attorneys of not being able to get attorney’s fees is greater in cases in 

which potential compensatory damages are small or where the plaintiff is primarily seeking an 

injunction ordering the defendant to stop its discriminatory actions. A compliant defendant may 

be able to avoid almost any potential financial consequences of its previous noncompliance with 
77

ADA requirements. Accordingly, an attorney bringing such a case may have little chance to 

receive compensation for her or his work. 

Reduced availability of attorney’s fees means fewer resources for ADA advocates, who, as 

a result, can litigate fewer cases. Ultimately, this makes it much more difficult for people 

with disabilities, including those who have suffered egregious discrimination on the basis 

of disability prohibited by the ADA, to obtain legal representation. In addition, defendants 

have more incentive to engage in unlawful discriminatory acts unless and until they are sued, 

because even if they lose in court they will not be liable for a fee award. 

NCD issued a policy paper examining the meaning and effect of the “catalyst theory,” and the 

implications for the enforcement of the ADA caused by the Court’s rejection of the theory. 

The Supreme Court’s Rejection of the “Catalyst Theory” in the Awarding of Attorney’s Fees 

and Litigation Costs, No. 17 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 

The Buckhannon decision has spawned lower court decisions in which attorneys who would have 

been likely recipients of attorney’s fees before the decision are no longer being compensated for 

cases challenging discrimination on the basis of disability. In one case,100 the Tenth Circuit ruled 

that an ADA plaintiff was not entitled to attorney’s fees even though after the lawsuit was filed 

the employer discontinued the practice, challenged in the suit, of asking questions regarding 

medical history on job applications. In another case,101 the defendant in a Title III action reacted 

to the lawsuit by voluntarily reducing challenged barriers to access in his restaurant in various 

ways, including removing planters obstructing wheelchair-accessible parking spaces, installing 

new wheelchair access signs in the parking lots and bathrooms, and altering the bathroom stall 

doors. The parties went to trial regarding a single remaining issue of whether the defendant was 

required to lower the urinal in the men’s bathroom, and the plaintiff prevailed. The court ruled 

that the plaintiff was the “prevailing party,” and thus entitled to an award of attorney’s fees, but 

only as to the issue regarding the urinal. Notwithstanding the defendant’s removal of numerous 
78

architectural barriers, prompted by the plaintiff’s lawsuit, “the only material change in the legal 

relationship between the parties occurred when the defendant was ordered to lower a urinal in the 

men’s bathroom.”102 As a result, plaintiff’s attorney was awarded less than 10 percent of his total 

fees and costs related to filing and trying the lawsuit. 

In a third case,103 the plaintiffs sued the Law School Admissions Council for failing to provide 

accommodations to students with disabilities taking the Law School Admissions Test (LSAT). 

As a result of the lawsuit, the Council provided all the accommodations sought by one of the 

named plaintiffs, and the parties entered into a stipulation dismissing her case. The district 

court found that the plaintiff was not entitled to attorney’s fees, however, because she “failed to 

achieve a judicially sanctioned change in the parties’ legal relationship.”104 The Buckhannon

ruling has had a similar impact on attorney’s fees in cases brought under Section 504 and the 

Individuals with Disabilities Education Act.105

The negative implications of Buckhannon are also illustrated by less formal reports either of fees 

not received or of cases not filed because of the rejection of the catalyst theory. One publicly 

funded advocacy agency, for example, complained that it had spent hundreds of thousands of 

dollars litigating a case involving alleged inhumane conditions at a state residential center for 

people with mental retardation, but lost its chance to recover attorney’s fees and litigation 

expenses when the state decided to close the facility.106 Even though the federal district court 

indicated it was inclined to believe that the state’s action was the result of the lawsuit, the court 

was foreclosed from awarding attorney’s fees and litigation costs under the Buckhannon ruling. 

The loss of such fees and costs severely hampered the level of service the agency would 

otherwise have been able to provide to other clients. Another advocacy organization that provides 

attorney representation at no cost to families in special education proceedings reported that, after 

Buckhannon, it was unable to negotiate any fees in any of the special education cases that were 

resolved through settlement.107 Since 90 percent of its cases were typically settled, the result was 

that it no longer recovered fees for most of its work, with negative effects on both the quality of 

the work it undertook (by reducing resources for retaining experts, obtaining evaluations, and 

similar expenses) and the number of families for which it could provide representation. Another 
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agency reported that as a result of Buckhannon, “we are obtaining fewer fees, which impacts on 

our ability to hire additional staff, and pay current staff sufficiently, both of which decrease our 

ability to serve more people with disabilities.”108

The Buckhannon decision has also inhibited the interest of private attorneys and law firms to 

take on such cases on a pro bono basis. A representative of one publicly funded disability 

advocacy agency observed: 

Buckhannon ... has had a dampening effect on our work in recruiting pro bono 

attorneys. ... In the past, we have been able to recruit private pro bono attorneys 

with the promise of recouping their time through attorney fees statutes. 

Unfortunately, the current reality is that if the attorney makes a persuasive case, 

the defendant can then change [its] policy or practice and moot out the case, 

thereby defeating the plaintiff’s claim for attorney’s fees.109

Issue: Disallowance of Punitive Damages in Private Lawsuits Under Section 202 of the ADA 

What the Supreme Court Did 

In Barnes v. Gorman, the Supreme Court ruled that punitive damages may not be awarded in 

private suits brought under Title VI of the 1964 Civil Rights Act, under Section 202 of the ADA, 

or under Section 504 of the Rehabilitation Act. 

Significance of the Court’s Action 

“Punitive damages” are amounts awarded to a plaintiff in addition to actual monetary damages 

when the defendant acted with malice, recklessness, or deception. Punitive damages are designed 

to punish the lawbreaker, and to deter future unlawful conduct by the defendant and by others 

who might be tempted to engage in similar conduct. The Supreme Court had provided indirect 

support for the availability of punitive damages under Title II by its decision in Franklin v. 

Gwinnett County Public Schools,

110 in which the Court stated that it would “presume the 

availability of all appropriate remedies, unless Congress has expressly indicated otherwise.” 

While Franklin was a Title IX case, the framework of analysis it applied led some lower courts 

to award punitive damages under Section 504.111 At the time that the Supreme Court took up 

the Barnes case, the court of appeals for the Sixth Circuit had ruled that punitive damages could 
80

not be obtained under Section 504,112 while the Eighth Circuit had ruled that punitive damages 

were available under both Section 504 and Title II of the ADA.113

In Barnes, the Court noted that the “remedies, procedures, and rights” for violations of Section 

202 of the ADA (Title II) and Section 504 of the Rehabilitation Act are coextensive with the 

remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 

1964. The Court also indicated that the availability of remedies under Title VI, and consequently 

of Title II of the ADA, should be determined with reference to a “contract law analogy,” which 

asks whether the recipient of federal funds implicitly consented to the remedy by accepting the 

funds. The Court considered it unlikely that funding recipients would subject themselves to 

punitive damages liability and concluded that compensatory damages were adequate to right the 

wrong in violation of Spending Clause legislation. Having concluded that punitive damages may 

not be awarded in private causes of action brought under Title VI, the Court reasoned that such 

damages, therefore, were unavailable for violations of Section 202 of the ADA or of Section 504 

of the Rehabilitation Act of 1973. 

NCD issued a policy paper examining the nature and purpose of punitive damages, their availability 

under the ADA, and the substance and ramifications of the Court’s ruling in Barnes. The Supreme 

Court’s Refusal to Permit Punitive Damages in Private Lawsuits under Section 202 of the ADA, 

paper No. 18 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 

Lower court decisions have begun to reflect the impact of the Barnes decision. In one case, a 

federal district court ruled that a fire paramedic, who was denied disability benefits because he 

was no longer “disabled” but denied reemployment because of an abnormal gait from a back 

injury, could not seek punitive damages against his city employer.114 Another district court 

similarly held that university students with disabilities could not seek punitive damages against 

the state university for its ongoing failure to provide the students access to campus programs, 

services, activities, and facilities.115
81

The inability to recover punitive damages acts as a disincentive for individuals considering 

pursuing their claims in court, and also eliminates the deterrent value of such damages to 

egregiously discriminatory conduct. In some cases, the possibility of an award of punitive 

damages also serves to make defendants less intractable in settlement negotiations. Without 

such a remedy, individuals are dramatically impaired in their ability to enforce civil rights 

protections and hold their governments accountable for the most extreme acts of intentional 

discrimination.116

D. 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 

In Chevron U.S.A. Inc. v. Echazabal, the Supreme Court upheld as permissible under the ADA 

the EEOC regulatory provision that allows employers to refuse to hire applicants because their 

performance on the job would endanger their health because of a disability, despite the fact that, 

in the language of the ADA, Congress recognized a “direct-threat” defense only for dangers 

posed to other workers. 

Significance of the Court’s Action 

In the section of Title I that lists defenses available to employers, the ADA contains a provision 

stating that “[t]he term ‘qualification standards’ may include a requirement that an individual 

shall not pose a direct threat to the health or safety of other individuals in the workplace.”117

The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot 

be eliminated by reasonable accommodation.”118 Although these provisions refer to the health 

or safety of “others” or “other individuals,” the EEOC expanded the defense in its regulations 

implementing Title I, making it applicable to “the health or safety of the individual or others.”119

NCD opposes the EEOC’s addition of a danger-to-self provision, because it invites paternalistic 

conjecturing by employers and their physicians about perceived dangers to individuals with 

disabilities, often based on ignorance and misconceptions about particular conditions, and 
82

fosters perceptions that individuals with disabilities are commonly irrationally self-destructive.120

The Court’s acceptance of the EEOC provision raises the distressing possibility of the more 

prevalent use of such overprotective health standards in the future. 

It is important to note, however, that in its decision in Echazabal the Court also accepted several 

significant conditions the EEOC recognized as part of the “direct-threat” defense. The Court 

noted that the EEOC regulation requires that the direct-threat defense must be “based on a 

reasonable medical judgment” supported by “the most current medical knowledge and/or the 

best available objective evidence,” and must involve an “individualized assessment of the 

individual’s present ability to safely perform the essential functions of the job,” which 

considers how imminent the risk is and how severe the harm would be.121 The EEOC provision 

also recognizes that the direct-threat defense applies only where there is “a significant risk of 

substantial harm” that “cannot be eliminated or reduced by reasonable accommodation.”122

In Echazabal, the Court observed that safety-related qualification standards that would reject 

potential workers because of “indirect” threats of “insignificant” harm would implicitly be 

precluded by the Act’s specification of a direct-threat defense.123

The Court also suggested in Echazabal, without deciding, that all safety-related qualification 

standards imposed by employers should be required to satisfy the ADA’s direct-threat standard—

a question that was expressly not decided in the Court’s earlier decision in Kirkingburg. The 

Court in Echazabal did accept that safety-related qualification standards are subject to the 

same requirement as other types of qualification standards that screen out individuals with 

disabilities—that they must be “job related” and “consistent with business necessity.”124 EEOC’s 

interpretive guidance for its Title I regulations specifies that, for any safety requirement that 

screens out individuals with disabilities, the employer must demonstrate that such requirement, 

as applied to the individual with a disability, satisfies the direct-threat standard to show that 

the requirement is job related and consistent with business necessity.125 Requiring employers’ 

safety criteria for hiring and retaining employees to be “job related,” “consistent with business 

necessity,” and able to satisfy the ADA’s “direct-threat” standard, as that defense is defined in 
83

the ADA and interpreted in the EEOC regulation, is critical to keeping such safety criteria within 

reasonable bounds, and preventing them from being used to undercut major ADA objectives. 

These requirements should ameliorate the damaging effects of the risk-to-self defense to some 

degree, and provide litigants with disabilities and their attorneys grounds for contesting the 

assertion of such a defense. Critically, because “direct threat” is a defense, employers attempting 

to assert health and safety concerns as a justification for their allegedly discriminatory actions 

must bear the burden of proof on the issues involved in demonstrating the existence of a direct 

threat.126 Such safeguards, however, may be rendered ineffective to the extent that such 

judgments and assessments are made by physicians who are employed by employers and may 

be more sensitive to protecting the employer than to the equal opportunity rights of potential 

employees with disabilities under the ADA. A job applicant with a disability may not have the 

knowledge or resources, and basis in current medical knowledge, to challenge the reasonableness 

of judgments made by company doctors that the employment would endanger his or her health 

or safety. Thus, despite the hope that it can be confined within appropriate limits, NCD views the 

establishment and recognition of a risk-to-self defense as a disturbing, unfortunate development. 

NCD issued a policy paper examining the Echazabal decision in detail, and discussing its 

implications and inconsistency with the statutory language and legislative history of the 

ADA Chevron v. Echazabal: The ADA’s “Direct Threat to Self” Defense, paper No. 9 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 

The Echazabal decision has permitted employers to make greater use of safety criteria in relation 

to workers and applicants with disabilities. The effects have begun to show up in reported ADA 

cases. In one case, a pharmacist with diabetes who worked at a Wal-Mart store asked his 

employer to permit him, as a reasonable accommodation, to have a half-hour off for lunch, so 

that he could take his medications and eat lunch.127 The store managers refused and fired the 

pharmacist. The court of appeals for the Eighth Circuit held that, in light of mitigating 
84

measures—primarily injections of insulin—the man did not have a disability under the ADA. 

The court added, however, that even if the pharmacist had established that he had a disability, 

Wal-Mart might have successfully raised the “risk-to-self” defense.128 Citing Echazabal, the 

Eighth Circuit ignored the plaintiff’s requested reasonable accommodation and instead suggested 

that Wal-Mart was justified in not continuing his employment, because working in a singlepharmacist pharmacy that did not provide for uninterrupted meal breaks posed a direct threat 

to the plaintiff’s health.129

In another case, the Merit Systems Protection Board found that the plaintiff employee failed 

to demonstrate that she could safely perform the essential functions of her position.130 The 

employee, an Internal Revenue Service program analyst, had a diagnosis of “multiple chemical 

sensitivity syndrome” and “respiratory reactive airway disease” and sought accommodations 

from her employer that would have allowed her to perform her job without getting ill. The Board 

found that the plaintiff failed to demonstrate that the requested accommodations would provide 

sufficient protection to allow her to safely perform the duties of her position, although, after her 

removal from Federal Government employment, she had successfully worked in an office 

environment for several private companies that made the accommodations she requested.131

The Board noted that plaintiff’s doctors agreed that there was no guarantee that the plaintiff 

could successfully avoid a debilitating chemical exposure at her workplace, and concluded, 

relying on the Echazabal decision, that “although the [plaintiff’s] willingness to work is 

admirable, we find that the consequences resulting from an accidental exposure could prove 

irreversibly catastrophic to her health.”132

A federal district court ruled that a nurse with latex allergies could not challenge a hospital’s 

requirement that its employees could not suffer from such allergies.133 Because other hospitals 

in the area did not have such a policy, the court ruled that the plaintiff was not disabled in 

regard to working, so she was not protected by the ADA. The court added, however, that under 

Echazabal, “a requirement that [the hospital’s] employees not suffer from latex sensitivities 

is a valid job requirement.”134 Accordingly, the court never addressed whether reasonable 

accommodations would have permitted the plaintiff to perform the essential tasks of the job. 
85

E. Limitations on Reasonable Accommodations Under Decisions of the 

Supreme Court 

Issue: Standard for Reasonableness of Reasonable Accommodations 

What the Supreme Court Did 

In U.S. Airways, Inc. v. Barnett, the Supreme Court recognized a reasonableness standard for 

reasonable accommodations separate from undue hardship analysis. 

Significance of the Court’s Action 

Before the Barnett decision, the EEOC and most courts and commentators believed that, to claim 

the right to a reasonable accommodation, a person with a disability merely had to show that a 

requested accommodation worked, in the sense that it would enable the worker with a disability 

to perform the essential functions of the job. The limits on its “reasonableness” were established 

by the ADA definition of “undue hardship,” which provided that an employer did not have to 

make an accommodation that required “significant difficulty or expense” determined in light 

of resources available to the employer, the nature and cost of the accommodation, and other 

factors.135 An “unreasonable accommodation,” then, was one that resulted in undue hardship. 

The majority opinion in Barnett, however, recognized an assessment of reasonableness of 

accommodation apart from undue hardship. 

The Court reasoned that the ADA does not “demand action beyond the realm of the 

reasonable.”136 It rejected Mr. Barnett’s argument that the word “reasonable” in “reasonable 

accommodation” only means “effective,” and held that it is the word “accommodation,” not the 

word “reasonable,” that conveys the need for effectiveness. The Court declared that “an 

accommodation could be unreasonable in its impact even though it might be effective in 

facilitating performance of essential job functions.”137 In permitting employers and courts to 

conduct an assessment of the “reasonableness” of accommodations, apart from their financial and 

administrative hardship on the employer’s operation, the Barnett opinion opened up a 

troublesome can of worms. It invites employers to interject their own possibly eccentric and 

prejudiced views about what is reasonable, and allows courts to second-guess otherwise 

workable and not unduly burdensome accommodations. Accordingly, the Court’s position 
86

undercuts a sensitive compromise—reflected in the “undue hardship” standard—between 

requiring employers to do nothing or very little to accommodate the needs of individual workers 

with disabilities and requiring them to take extreme actions to accommodate particular workers 

that would unduly harm the employers’ businesses. 

In its regulations and regulatory guidance, the EEOC has delineated a process for determining an 

appropriate accommodation, which involves (1) initial discussions between the employer and the 

employee or applicant, (2) analysis of the particular job involved to determine its purpose and 

essential functions, (3) consultation with the individual with a disability to identify job-related 

limitations and how those limitations could be overcome with a reasonable accommodation, 

(4) identification of potential accommodations and assessment of the effectiveness each would 

have, and (5) selection and implementation of the accommodation that is most appropriate for 

both the employee and the employer considering the preference of the individual to be 

accommodated.138 The courts have recognized this requirement and commonly refer to it as the 

“interactive process” for determining reasonable accommodation.139 This process did not 

contemplate that, although such-and-such accommodation would be effective and is not unduly 

costly or difficult, the employer could still reject it because it did not view the accommodation as 

reasonable. Nor did it contemplate that courts could interpose their own opinions about whether 

an effective, not unduly burdensome accommodation is somehow nonetheless unreasonable. 

In its origins in regulations implementing the Rehabilitation Act, in its usage in the ADA, and in 

regulatory interpretations of the EEOC, the focus of the “reasonable accommodation” concept 

has always been on meeting the accommodation needs of the worker. Under the EEOC’s 

regulations implementing the ADA, “reasonable accommodation” is defined to mean various 

kinds of “modifications or adjustments” to the application and work environment that (1) “enable 

a qualified applicant with a disability to be considered for the position such qualified applicant 

desires,” (2) “enable a qualified individual with a disability to perform the essential functions of 

[the] position [held or desired],” or (3) “enable a covered entity’s employee with a disability to 

enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated 
87

employees without disabilities.”140 The definition is concerned exclusively with enabling the 

employee or applicant to participate on an equal footing. 

Conversely, the phrase “undue hardship” has been viewed, since its origins in Rehabilitation Act 

regulations, as the limit on an employer’s obligation to provide accommodations. The ADA 

defines the term “undue hardship” to mean “an action requiring significant difficulty or expense, 

when considered in light of” factors noted in the next subparagraph of the definition, including 

(1) the type and cost of an accommodation; (2) the financial resources of the employer; (3) the 

financial resources of the particular facility involved; (4) the number of persons employed by the 

employer overall and at the particular facility; (5) the type of business involved; and (6) the 

impact of an accommodation on expenses, resources, and operations of the particular facility and 

of the employer’s business overall.141 The ADA thus states in considerable detail the kinds of 

financial, administrative, and structural factors that courts should consider when deciding 

whether an accommodation will place an undue hardship on employers. 

During congressional consideration of the ADA, discussions and debates about how an employer 

could defend itself against a claim for a requested accommodation centered on the “undue 

hardship” definition.142 The word “reasonable” was not viewed by Congress or the drafters of the 

legislation as an independent modifier that would exclude particular accommodations that 

employers were otherwise legally obligated to provide under the ADA. The Court’s opinion in 

Barnett makes a dramatic break with the ADA’s legislative history and implementing regulations 

in suggesting that the statute imposes an independent standard of reasonableness of 

accommodation. 

On a positive note, the majority opinion in Barnett recognized the ADA’s “basic equal 

opportunity goal,”143 and that achievement of the Act’s objectives “will sometimes require 

affirmative conduct to promote entry of disabled people into the workforce.”144 The Court ruled 

that the reasonable accommodation obligation can require an employer to make exceptions to 

disability-neutral practices and rules, even if such exceptions might be considered a “preference” 

in a sense.145 The Court elaborated as follows: 
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Were that not so, the “reasonable accommodation” provision could not 

accomplish its intended objective. Neutral office assignment rules would 

automatically prevent the accommodation of an employee whose 

disability-imposed limitations require him to work on the ground floor. 

Neutral “break-from-work” rules would automatically prevent the accommodation 

of an individual who needs additional breaks from work, perhaps to permit 

medical visits. Neutral furniture budget rules would automatically prevent the 

accommodation of an individual who needs a different kind of chair or desk. 

Many employers will have neutral rules governing the kinds of actions most 

needed to reasonably accommodate a worker with a disability.146

Significantly, this ruling makes it clear that the duty of making reasonable accommodations is 

not restricted simply to modifying rules and practices that directly disadvantage workers with 

disabilities, and can necessitate exceptions even to practices and policies that are 

disability-neutral and applied uniformly to all workers. 

The majority opinion in Barnett also clarified the evidentiary framework for reasonable 

accommodation cases by ruling that, to overcome an employer’s summary judgment motion, a 

plaintiff employee needs only show that an accommodation seems reasonable on its face, 

“ordinarily or in the run of cases.”147 Once the plaintiff meets this burden, the employer has to 

establish the existence of “undue hardship” in the particular circumstances. 

The recognition of the underlying purpose, necessity, and reach of the reasonable accommodation 

requirement, and clarification of the evidentiary framework, however, do not lessen the potential 

harmful effects of the Court’s formulation of an independent standard for determining the 

reasonableness of accommodations. 

NCD issued a policy paper examining the Barnett decision in detail, and discussing its 

implications as well as the larger economic and social issues it raises. Reasonable 

Accommodation After Barnett, paper No. 10 of NCD’s Policy Brief Series: Righting the ADA 

Papers, can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 
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Examples of Impact 

One hope for minimizing the negative impact of the independent evaluation of reasonableness of 

accommodation as sanctioned in the Barnett decision would be to confine this analysis to the 

reassignment/seniority factual context at issue in the Barnett case. Seniority rights have 

traditionally occupied a special place in employee-management relations, and have been 

accorded favorable status in the courts, in recognition of their significant impact on the 

expectations and rights of workers.148

Some courts have chosen to read Barnett narrowly, and have refused to extend the Supreme 

Court’s reasoning beyond the ambit of established seniority rights. The court of appeals for the 

Third Circuit, for example, declined to grant summary judgment to an employer who claimed 

that an employee seeking a transfer as a reasonable accommodation had failed to follow its 

regular procedures for seeking a transfer.149 The court said that the plaintiff must still be given 

the opportunity to show that the accommodation he or she requests is reasonable on its face, and 

the fact that the Supreme Court found one type of requested accommodation—“violation of 

seniority system rules”—prima facie unreasonable did not mean that violations of other types of 

rules would be found equally unreasonable. The Third Circuit noted that, in light of the Supreme 

Court’s caveat in Barnett that a plaintiff “remains free to show that special circumstances warrant 

a finding,”150 even a seniority system violation can be found reasonable on the facts of a 

particular case.151 The court did not accept that the Supreme Court’s creation of one presumptive 

exception to a reasonable accommodation request worked to reshape either the interactive 

accommodation procedure or the evidentiary defense burden, which employers ordinarily must 

meet when they deny an accommodation that on its face is reasonable. 

Not all lower court decisions, however, have been so discriminating in their application of the 

Barnett ruling. A decision of the Seventh Circuit perhaps best illustrates the extent to which the 

Barnett analysis could be extended outside of the seniority system context. In Mays v. Principi,

152

the Seventh Circuit affirmed the district court’s grant of summary judgment against a staff nurse 

employed by Veterans Affairs (VA) who had sought a reasonable accommodation to enable her 

to continue to perform nursing duties in a different nursing position. Although the action was 
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brought under Section 501 of the Rehabilitation Act of 1973, the court relied on its interpretation 

of the Supreme Court’s Barnett decision. The Seventh Circuit found support in the following: 

...a recent decision of the Supreme Court [Barnett] which holds that an employer 

is not required to give a disabled employee superseniority to enable him to retain 

his job when a more senior employee invokes an entitlement to it conferred by the 

employer’s seniority system. If for “more senior” we read “better qualified,” for 

“seniority system” we read “the employer’s normal method of filling vacancies,” 

and for “superseniority” we read “a break...”153

By simply equating “normal method of filling vacancies” with a “seniority system,” the decision 

bypassed any analysis of the employer’s “normal method” and whether it could be adjusted as a 

reasonable accommodation. The Seventh Circuit ultimately ruled against Mays’ request for 

accommodation because, even “assuming that she was qualified for such a job, if nevertheless 

there were better-qualified applicants ‘and the evidence is uncontradicted that there were’ the VA 

did not violate its duty of reasonable accommodation by giving the job to them instead of to 

her.”154 The court ruled for the VA merely because it claimed to have better-qualified applicants, 

not existing employees with a legal right or expectation to the positions in question. The court 

reasoned that it would not be “reasonable” for the VA to transfer Mays to a vacant position as an 

accommodation if she was “not as well-qualified as competing applicants.”155

The result is that Mays’ right to reassignment as a reasonable accommodation was reduced 

to a mere right to apply for a position when no applicants with better qualifications exist 

(in the employer’s opinion)—a right she would have had even if there were no “reasonable 

accommodation” requirement. Thus, the Mays v. Principi decision demonstrates the serious threat 

to reasonable accommodation that a broad interpretation of the Barnett decision can cause.156

The Seventh Circuit had, in fact, been inclined to impose a separate reasonableness standard well 

before its Mays v. Principi ruling and, indeed, well before the Barnett decision. In a strange and 

erratic decision in a 1995 ADA case,157 the Seventh Circuit advanced a broad prerogative to 

second-guess the reasonableness of accommodations sought by an individual with a disability. 

The case involved an employee whose paralysis made her prone to developing pressure ulcers 

and sometimes required her to stay at home for periods of up to several weeks. The plaintiff 
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sought the following as reasonable accommodations: (1) lowering a kitchen sink used by 

employees on the floor where her office was (at a cost of approximately $150); (2) providing her 

a desktop computer for home use; and (3) permitting her to work at her home during periods 

when her condition prevented her from coming to the office. The Seventh Circuit affirmed an 

award of summary judgment for the employer on the grounds that the employee’s requested 

accommodations were not “reasonable” as a matter of law, even though the employer had not 

demonstrated that they would cause undue hardship. The court rejected the contention that the 

phrase “reasonable accommodation” means only an apt or efficacious modification required by 

the employee with a disability. Instead the court advanced the idea that “‘reasonable’ may be 

intended to qualify (in the sense of weaken) ‘accommodation’....”158 The court reasoned that even 

if an accommodation would not be an “undue hardship” on the employer it could still be 

unreasonable. The court compared costs to the relative benefit to the employee, a consideration 

that is not a factor in the undue hardship analysis.159 The Seventh Circuit even decided that costs 

could be a limit on the duty to accommodate even apart from the undue hardship standard 

imposed in the statute: 

...costs enter at two points in the analysis of claims to an accommodation. The 

employee must show that the accommodation is reasonable in the sense both of 

efficacious and of proportional to costs. Even if this prima facie showing is made, 

the employer has an opportunity to prove that upon more careful consideration the 

costs are excessive in relation either to the benefits of the accommodation or to 

the employer’s financial survival or health.160

Apart from its undercutting the statutorily designated process and standard for consideration of 

costs of accommodations, the arbitrariness of the reasonableness standard imposed by the court 

was demonstrated by its bald assertion that the plaintiff’s request to work at home periodically as 

an accommodation to flare-ups in her condition was not reasonable. The court simply stated, 

without any evidentiary basis, that “[m]ost jobs in organizations public or private involve team 

work under supervision rather than solitary unsupervised work, and team work under supervision 

generally cannot be performed at home without a substantial reduction in the quality of the 

employee’s performance.... An employer is not required to allow disabled workers to work at 

home, where their productivity inevitably would be greatly reduced.”161 This pronouncement 
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came during a decade of rapidly expanding telework options that allowed many different kinds of 

employees the option of performing their work functions outside of a centralized workplace. 

Even without a desktop computer, the plaintiff managed to work all but 16.5 hours from her 

home in an eight-week period using a laptop computer. It is difficult to understand how the court 

could then draw the conclusion that it manifestly is not reasonable to allow employees to work at 

home for a period of time.162

Such injections of personal misconceptions and assumptions are one of the grave dangers of an 

untethered reasonableness assessment by employers and judges, in lieu of the more definite, 

statutorily specified undue hardship standard. Obviously, the Supreme Court’s decision in 

Barnett greatly ratchets up the risk of such misguided, if often sincere, interference to prevent the 

implementation of workable accommodations to permit employees with disabilities to perform 

essential job tasks. 

Issue: Impact of Seniority Systems on Potential Accommodations 

What the Supreme Court Did 

In U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002), the Supreme Court ruled that the ADA 

ordinarily does not require the assignment of an employee with a disability, as a reasonable 

accommodation, to a particular position to which another employee is entitled under an 

employer’s established seniority system, but that it might in special circumstances. The Court 

declared that “to show that a requested accommodation conflicts with the rules of a seniority 

system is ordinarily to show that the accommodation is not ‘reasonable.’”163

Significance of the Court’s Action 

In a sense, the Court’s ruling regarding situations in which the rights of a worker with a 

disability seeking assignment to a particular position as a reasonable accommodation under the 

ADA come into conflict with other workers’ rights to bid for the position under the employer’s 

seniority system can be viewed as having improved the legal situation slightly. Although neither 

the language of the ADA nor anything in its legislative history suggests that modification of 

seniority policies inherently is unreasonable, before the Barnett decision, most courts held 
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that an accommodation that violated a collective bargaining agreement was automatically 

unreasonable.164 NCD has taken the position that ADA rights should not be subject to limitation 

by the terms of collective bargaining agreements,165 particularly because Section 504 regulations 

have long provided that employer obligations under that Act are not affected by the terms of 

any collective bargaining agreement,166 and the ADA specifies that “nothing” in the law is to 

“be construed to apply a lesser standard” than under such regulations. Under Barnett, 

accommodations conflicting with collectively bargained seniority systems would ordinarily, 

but not automatically, be deemed unreasonable. 

The particular accommodation at issue in the Barnett case was allowing Mr. Barnett to remain 

in a position to which he had transferred despite the fact that the position was subject to 

seniority-based bidding by other employees. The Court ruled that the ADA ordinarily does not 

require the assignment of an employee with a disability to a particular position to which another 

employee is entitled under an employer’s established seniority system, but that it might in special 

circumstances. The Court indicated that transfer to a position to which another employee would 

be entitled under a seniority system would not be reasonable “ordinarily or in the run of cases.”167

But the Court stated that the employee could demonstrate “special circumstances” that would 

render a requested accommodation reasonable in particular circumstances. As an example of 

such circumstances, the Court mentioned situations in which other exceptions to a seniority 

system are made relatively frequently, so permitting another exception to accommodate a worker 

with a disability would not significantly impact the company or workers’ expectations.168 The 

upshot of the ruling is that plaintiffs seeking accommodations that conflict with seniority rights 

of other employees will face an uphill battle but can prevail if they can demonstrate special 

circumstances that make an exception to the seniority system reasonable. 

The Court removed one obstacle that some courts created for plaintiffs seeking reassignment as 

a reasonable accommodation. Such courts held that a position that was open for bidding under 

a seniority system was not “vacant” and, therefore, not available as a possible accommodation. 

The majority opinion in Barnett clarified that for purposes of accommodations in the form of 
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“reassignment to a vacant position” as authorized under the ADA,169 a vacant position can be 

one that is open for bidding under a seniority system.170

Justice O’Connor wrote a concurring opinion in which she indicated that she would have held 

that a seniority system would only render a job reassignment as an accommodation under the 

ADA unreasonable if the seniority system were legally enforceable (U.S. Airways’ was not). 

Justice Stevens also filed a concurring opinion, in which he identified issues that, in his view, 

would need to be resolved by the lower courts to determine whether the accommodation 

requested by Mr. Barnett was reasonable. The slim 5-to-4 margin of the decision coupled with 

the sentiments expressed in the concurrences are sufficient to afford Mr. Barnett and future 

litigants some leeway to still argue, given the particular circumstances at issue, that transfer to a 

position as a reasonable accommodation should prevail over seniority rights of other employees. 

Examples of Impact 

The Supreme Court’s recognition in Barnett of a rebuttable exception to the ADA’s reasonable 

accommodation mandate for seniority systems offers a line of defense for employers, but it does 

not require lower courts to let employers off the evidentiary hook. The circuit decisions on this 

issue that have been decided after Barnett generally have focused more on the evidentiary 

framework established in the decision than on the question of what will be considered 

“reasonable” in the abstract. For the most part, the circuit courts have refused to grant summary 

judgment for defendants. In one decision of the Tenth Circuit,171 for example, the court 

considered a truck driver’s request for reassignment to a route that accommodated his back 

disability by not requiring lifting above 60 pounds. The employer argued that Barnett applied 

and the employee’s request was prima facie unreasonable since it “would have required [the 

employer] to violate the terms of its collective bargaining agreement with the union representing 

its warehouse employees.”172 Stating that “it is the direct violation of a seniority system that has 

been held unreasonable under the governing case law,”173 the Tenth Circuit found that there was 

only a slim chance that the plaintiff—who ranked 5 out of 42 drivers in seniority—might be 

reassigned to a position that was later requested by a more senior driver. The plaintiff’s present 

request for accommodation was not rendered unreasonable merely because it potentially might 
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violate the seniority system if a more senior employee requested the plaintiff’s position and 

the employer refused to bump the plaintiff until another route or position was available. 

In another decision, the same circuit court of appeals considered the ADA case of an employee 

with diabetes who had worked for 20 years for the defendant company but was let go when 

the employer claimed it was unable to transfer him to an equivalent position that would 

accommodate scheduling restrictions resulting from his diabetes.174 When the EEOC, pursuant to 

a subpoena, requested information about job vacancies in the defendant’s three store locations, 

the employer argued that the existence of a collective bargaining agreement and an established 

seniority system served to “take off the table” those positions for which the plaintiff sought 

information, therefore rendering the information irrelevant.175 The holding in Barnett, interpreted 

broadly, might have offered support to the defendant’s position, since Barnett did not distinguish 

between the rights established under collective bargaining agreements and those under 

unilaterally imposed employer seniority systems. The Tenth Circuit, however, cited the Barnett

decision only for the proposition that an accommodation cannot be rendered not “reasonable” 

by the mere fact that it would result in a “preference.”176 The court found that, as a matter of 

fact, the collective bargaining agreement did not apply to the particular positions for which 

information was sought, and also rejected the employer’s argument that the information was 

irrelevant because of an entrenched company policy that other employees at any particular store 

location had a prevailing right to any vacancy occurring at that location. In the court’s analysis, 

“the information requested by the EEOC remains relevant . . . to determine whether there was in 

fact a position that was either not offered to any incumbents or not accepted by any incumbent.” 

In other words, the defendant’s bald assertion of policy did not foreclose the possibility that 

the employee’s requested transfer could have been factually reasonable. The court explicitly 

distinguished between a collective bargaining agreement’s effect on the “vacancy” status of an 

open position and a unilaterally asserted employment policy, whether entrenched or not. The 

implication is that an employer’s assertion that an entrenched store policy makes a requested 

accommodation unreasonable remains something that must be asserted and established by 

defendants at trial. 
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The court of appeals for the District of Columbia Circuit (D.C. Circuit) considered “reasonable 

accommodation” in the case of an operating room orderly who had worked for a hospital for 

19 years before undergoing bypass surgery, after which he was restricted to work that involved 

a “light or moderate level of exertion.”177 The hospital declined to transfer the plaintiff to a job 

compatible with his medical restrictions and instructed him to apply for vacant jobs as the 

hospital posted them. The district court had granted summary judgment to the employer on 

the ground that the hospital’s collective bargaining agreement prevented the hospital from 

reassigning disabled employees outside of the job-application process provided in the agreement, 

and that any conflict between the ADA’s reassignment obligations and other employees’ rights 

under the collective bargaining agreement had to be resolved in favor of the agreement. 

On appeal, the D.C. Circuit reversed its decision. The court of appeals ruled that reassignment 

to a vacant position in the particular case did not necessarily require violation of the collective 

bargaining agreement in question, and was therefore not prima facie unreasonable and grounds 

for granting summary judgment. In its analysis, the appellate court refused to assign priority 

to either the collective bargaining agreement or the ADA, stating that there were insufficient 

facts to determine whether a conflict existed in the case before them. The court recognized 

no automatic priority of either the ADA or collective bargaining agreements, and required that 

conflicts between them should be determined and resolved on a case-by-case factual analysis. 

Accordingly, the D.C. Circuit examined the hospital’s collective bargaining agreement in detail 

and noted that the agreement contained a provision stating that any employee who became 

disabled and consequently unable to perform a job “shall be reassigned to another job he is able 

to perform whenever, in the sole discretion of the Hospital, such reassignment is feasible and will 

not interfere with patient care or the orderly operation of the Hospital.” The court viewed this 

provision as giving the employer the discretion and right to reassign employees with disabilities 

in some circumstances, and added that, whenever possible, collective bargaining agreements 

should be interpreted so as to be consistent with federal laws. There was no need to consider 

whether the agreement would allow for reassignment in every case where it is mandated by 

the ADA. 
97

The court of appeals also refuted the hospital’s constricted interpretation of the term “reassign” 

in the ADA, declaring that it “must mean more than allowing an employee to apply for a job on 

the same basis as everyone else.”178 Because the ADA prohibits discrimination in job application 

procedures, such a narrow interpretation of reassignment would render the provision meaningless 

as a reasonable accommodation. Furthermore, the court denied the argument that the ADA on 

principle can never be interpreted so as to require employers to give a “preference” to an 

employee with a disability. The majority acknowledged the legislative history’s warning against 

giving preferences to applicants with disabilities, but distinguished this from “[t]he ADA’s 

reasonable accommodation requirement [which] treats disabled and non-disabled employees 

differently”; different treatment under the ADA is not prohibited merely because it could be 

interpreted as a “preference,” because such actions “need not always be highly disruptive to an 

employer’s operations or seriously infringe the interests of other employees.”179

The fact that the initial lower court cases interpreting the Supreme Court’s Barnett decision, 

as discussed here, have been relatively favorable to plaintiffs should not obscure the fact that 

the decision fundamentally gives certain workplace norms—seniority systems and terms of 

collective bargaining agreements—priority over ADA rights in many situations, as the Court 

put it, “ordinarily or in the run of cases.”180 As a remedial measure for historic and systemic 

discrimination against people with disabilities, the ADA requires “reasonable accommodation,” 

which involves individualized assessments of what a job requires and what a given person with 

a disability can do if the work environment is modified. The Court’s recognition of traditional 

workplace practices and processes, including seniority systems and terms of collective bargaining 

agreements, as having superiority over the accommodation rights of workers with disabilities 

flies in the face of central objectives of the ADA, and helps to keep in place the discriminatory, 

exclusionary workplace environment the ADA sought to reform. 

Commentators have suggested that seniority systems tend to work against workers with 

disabilities because inaccessibility and other aspects of workplace discrimination have made it 

more likely that they will have shorter work tenure, that is, less seniority.181 Of course, for those 

individuals with disabilities who have managed to obtain a job in a company with a properly 
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administered seniority system, seniority may be advantageous in facilitating promotions in 

circumstances in which the employer’s prejudice and lowered expectation for the worker with 

a disability might otherwise stifle chances of advancement. The pertinent question, however, is 

not with the underlying value of seniority systems, but whether a seniority system should give 

way in the face of reassigning a worker with a disability as a reasonable accommodation in lieu 

of discharging that employee. In its Barnett decision, the Supreme Court stated the following: 

...to require the typical employer to show more than the existence of a seniority 

system might well undermine the employees’ expectations of consistent, uniform 

treatment—expectations upon which the seniority system’s benefits depend. That 

is because such a rule would substitute a complex case-specific “accommodation” 

decision made by management for the more uniform, impersonal operation of 

seniority rules.182

The Supreme Court thus treats the desire not to undermine employee expectations by deviating 

from “more uniform, impersonal ... rules” as more important than case-specific accommodations 

for workers with disabilities. The individualized approach lies at the heart of the ADA’s 

reasonable accommodation requirement. In Barnett, the Court made a non-legislatively-based 

value decision that it is more important to preserve impersonal systemic rules than to evaluate 

the abilities of individuals with disabilities and the essential requirements of jobs to avoid 

discriminating on the basis of disability. The full impact of this position on the decisions of 

lower courts has yet to be felt.
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III. Getting the ADA Back on Track: 

Remedial Legislative Approaches 

Incisive and forceful legislative action is needed to address the dramatic narrowing and 

weakening of the protection provided by the ADA, resulting from the Supreme Court’s decisions, 

and to restore civil rights protections. Millions of Americans experience discrimination based 

on ignorance, prejudice, fears, myths, misconceptions, and stereotypes that many in American 

society continue to associate with certain impairments, diagnoses, or characteristics. To revive 

the scope and degree of protection that the ADA was supposed to provide—to address 

“pervasive” discrimination in a “comprehensive” manner, as the Act declares—and to put ADA 

protections on a more equal footing with other civil rights protections under federal law, it is 

necessary to remove conceptual and interpretational baggage that has been attached to various 

elements of the ADA. Any legislative proposal should address, in some way, each of the 

problems listed in Section II of this report that the Court’s decisions have created. Often there 

may be alternative approaches for remedying particular problems. 

A. The Definition of Disability 

1. Primary Recommended Approach to Repair the Definition of Disability— 

Back to Basics 

The most fundamental way to allay much of the trouble with the definition of disability would 

be to return to the streamlined approach of the original version of the ADA, developed by NCD 

and introduced in Congress in 1988, with a few terminological changes such as substituting 

“disability” for “handicap.” In its January 1986 report, Toward Independence, NCD called on 

Congress to “enact a comprehensive law requiring equal opportunity for individuals with 

disabilities, with broad coverage and setting clear, consistent, and enforceable standards 

prohibiting discrimination on the basis of handicap.” The report went on to recommend the 

following: 

[The proposed law] should straightforwardly prohibit “discrimination on the basis 

of handicap,” without establishing any eligibility classification for the coverage of 
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the statute. Discrimination on the basis of handicap should be broadly construed 

to apply the requirements of the statute to all situations in which a person is 

subjected to unfair or unnecessary exclusion or disadvantage because of some 

mental or physical impairment, perceived impairment, or history of impairment.

In 1988, NCD issued a follow-up report, On the Threshold of Independence, which included 

NCD’s draft version of the ADA. The draft bill was based on the approach outlined in the equal 

opportunity recommendations in Toward Independence, augmented by the comments and advice 

received from disability advocates and congressional leaders in the intervening 18 months. The 

draft bill included definitions of “on the basis of handicap” and “physical or mental impairment,” 

as follows: 

(1) ON THE BASIS OF HANDICAP.—The term “on the basis of handicap” 

means because of a physical or mental impairment, perceived impairment, 

or record of impairment. 

(2) PHYSICAL OR MENTAL IMPAIRMENT.—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: 

(i) the neurological system; 

(ii) the musculoskeletal system; 

(iii) the special sense organs, and respiratory organs, including speech 

organs; 

(iv) the cardiovascular system; 

(v) the reproductive system; 

(vi) the digestive and genito-urinary systems; 

(vii) the hemic and lymphatic systems; 

(viii) the skin; and 

(ix) the endocrine system; or 
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(B) any mental or psychological disorder, such as mental retardation, organic 

brain syndrome, emotional or mental illness, and specific learning 

disabilities. 

(3) PERCEIVED IMPAIRMENT.—The term “perceived impairment” means not 

having a physical or mental impairment as defined in paragraph (2), but being 

regarded as having or treated as having a physical or mental impairment. 

(4) RECORD OF IMPAIRMENT.—The term “record of impairment” means 

having a history of, or having been misclassified as having, a mental or physical 

impairment. 

This 1988 draft remained true to NCD’s 1986 admonition that the ADA not establish an onerous 

eligibility classification for coverage under the statute. NCD’s proposal was followed closely in 

the version of the ADA introduced in Congress in April 1988. 

The revised version of the ADA introduced in the new Congress in 1989 simply substituted 

language from the Rehabilitation Act regarding the meaning of “handicap” in the 

nondiscrimination provisions of that Act (including Section 504), and replaced the word 

“handicap” with “disability.” The language, which remained in the bill that passed in 1990, 

defined “disability” as follows: 

(A) a physical or mental impairment that substantially limits one or more of the 

major life activities of such individual; 

(B) a record of such an impairment; or 

(C) being regarded as having such an impairment.

Given the broad interpretation that the definition of disability under Section 504 had received, 

including by the Supreme Court in the Arline case, Congress did not view the substitution of 

the Rehabilitation Act version as involving any narrowing of the scope of protection. The 

ADA committee reports indicated that Congress intended the definition of disability to be 

comprehensive; they stated that the Act does not include a list of all the specific conditions, 

diseases, or infections that constitute physical or mental impairments under the first prong of 

the definition “because of the difficulty of ensuring the comprehensiveness of such a list....” 

In addition, the reports stressed the breadth of the third prong (“regarded as”) of the definition 
102

that includes anyone who is excluded from activities because of a covered entity’s negative 

reactions to the person’s condition. The reports also made it clear that people whose conditions 

were ameliorated by mitigating measures were intended to be protected by the ADA. Congress 

could not foresee the series of restrictive, “miserly,” technical interpretations that the Supreme 

Court would affix to the elements of the definition of disability. 

A return to the original approach would avoid many of the problematic interpretations of the 

definition, resulting from the Supreme Court’s stingy parsing of the “major life activity” and 

“substantially limits” elements of the definition. NCD issued a policy paper that discusses 

some of the advantages of such an approach and presents versions of some of the legislative 

proposals contained in this subsection. Defining “Disability” in a Civil Rights Context: 

The Courts’ Focus on Extent of Limitations as Opposed to Fair Treatment and Equal 

Opportunity,

183 paper No. 6 of NCD’s Policy Brief Series: Righting the ADA Papers, 

can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 

Following is legislative language that would refocus the ADA on prohibiting discrimination on 

the basis of disability rather than drawing sharp, technical distinctions among people based on 

how inherently debilitating their conditions are or are not, as engendered by the Supreme Court’s 

interpretations of the elements of the current definition of disability. The original NCD version 

of the definition would also be modified by incorporating a key concept of enlightened modern 

disability policy referred to as the “social model” of disability, which acknowledges that 

environment plays a critical role in determining the extent to which a condition is limiting and, 

therefore, that the significance of a person’s impairment is to a large extent socially and 

environmentally determined. 

Proposed Statutory Revisions 

(1) Various forms of references in the ADA to discrimination “against an individual with a 

disability” shall be replaced by references to discrimination “on the basis of disability.” 
103

(2) “Disability” shall be defined to mean: 

(1) a physical or mental impairment; 

(2) a record of a physical or mental impairment; or 

(3) a perceived physical or mental impairment. 

(3) The following definitions shall be inserted in the ADA: 

(A) PHYSICAL OR MENTAL IMPAIRMENT. The term “physical or mental 

impairment” means: 

(1) 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 

(2) any mental or psychological disorder, such as mental retardation, 

organic brain syndrome, emotional or mental illness, and specific learning 

disabilities. 

(B) RECORD OF PHYSICAL OR MENTAL IMPAIRMENT. The term “record 

of impairment” means having a history of, or having been misclassified as having, 

a physical or mental impairment. 

(C) PERCEIVED PHYSICAL OR MENTAL IMPAIRMENT. The terms 

“perceived physical or mental impairment” or “perceived impairment” mean 

being regarded as having or treated as having a physical or mental impairment. 

Purpose and Sources of the Proposed Language 

The proposed language would help to address many of the coverage problems created by the 

series of constricting Supreme Court interpretations of the elements of the definition of disability, 

by returning to a simpler, more straightforward formulation of statutory coverage—protecting 
104

all persons who are subjected to discrimination on the basis of disability. It seeks to avoid any 

requirement that a victim of disability discrimination submit evidence of the nature and extent of 

her or his limitations flowing from an impairment as a precondition to addressing whether the 

person was treated fairly or discriminatorily. This focus on discrimination based on impairment 

is derived from the original ADA proposal of NCD, and the 1988 ADA bills sponsored by 

Senators Weicker and Harkin, and Representative Coelho. In some ways, this proposal can be 

seen as a descendent of a 1972 bill sponsored by Senator Hubert H. Humphrey, which simply 

would have added disability to the grounds of discrimination prohibited by the Civil Rights Act 

of 1964. 

The rejection of a rigid and stringent concept of “disability” consisting of an “impairment” that 

“substantially limits” one or more major life activity is based on these federal sources, as well 

as the laws of California, Connecticut, New Jersey, and New York. It prevents plaintiffs from 

having to submit evidence about the potential negative impact of their condition on their ability 

to function when that impact is irrelevant to their discrimination cases. 

The definition of “physical or mental impairment” is the definition currently in place in ADA 

regulations. It is the same definition that was established in Section 504 regulations, proposed 

by NCD in its 1988 version of the ADA, and explicitly endorsed in ADA committee reports. 

2. Addressing Specific Problematic Aspects of the Court’s Rulings 

In addition to addressing the broad conceptualization and overall structure of the definition of 

disability that undergird the Supreme Court’s restrictive interpretations, legislative revisions 

are needed to counter, explicitly, the particular problematic legal conclusions announced in the 

Supreme Court’s decisions. If left in place, these conclusions would undermine the return to 

the original broad scope of the definition. Following are issues or aspects of the definition of 

disability and related provisions in the ADA that should be clarified to undo damage caused 

by the Court’s rulings: 
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Mitigating Measures 

To ensure that the Supreme Court’s rulings that determinations of disability are to be made with 

mitigating measures taken into account shall not remain the law, a specific provision needs to 

be added to the ADA to explicitly declare otherwise. 

A provision such as the following should be included in the definition of “on the basis of 

disability”: 

MITIGATING MEASURES.—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. 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. 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.” 

The exclusion of “mitigating measures” is fully supported by the legislative history of the ADA, 

and tracks recent legislative changes made to state laws in California and Rhode Island, and a 

recent ruling by the Massachusetts Supreme Court. 

Supportive Construction of Definition and Entire Act 

To correct the Court’s ruling that the definition of disability is to be interpreted strictly to create a 

demanding standard, the ADA needs to include a provision directing that the Act, in general, and 

the definition of “on the basis of disability,” in particular, are to be construed broadly to achieve 

the law’s objective of eliminating pervasive discrimination in a comprehensive fashion. This 

could be accomplished by inserting a provision in Title V requiring liberal interpretation of the 

Act, including the definition, such as the following: 

SUPPORTIVE 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 
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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, modify policies and practices, 

and 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. 

Regulations Interpreting the Definition and Clarifications 

Each of the Federal agencies charged with issuing regulations that implement various Titles of 

the ADA or provisions of a Title should be expressly authorized to include provisions covering 

the application of the ADA definitions to activities subject to the regulations. These provisions 

include regulatory clarifications or interpretive guidance arising from the differing contexts and 

purposes of the particular subject of the regulations. Accordingly, a new provision should be 

added to Title V, along the following lines: 

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 accessible 

formats that implement the provisions of the ADA Restoration Act. 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. 

The 43 Million Figure 

Because the Supreme Court, particularly in the Sutton and Williams decisions, used the 

ADA congressional finding that 43 million people in the United States have a disability as 

the justification for its conclusion that Congress wanted a narrow interpretation of disability, 

the 43 million finding should be addressed directly. The 43 million figure was intended as a 

loose gross estimate (based on the partial data available) of the number of people with actual 

disabilities and not the indefinite, indeterminable class of people who may be perceived or 
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treated as having a condition that may subject them to discrimination. The most complete 

solution would be to remove the finding from the ADA. Without such a clarification, the 

Supreme Court might continue to restrict the application of any revised version of the definition 

on the grounds that Congress intended to limit the ADA’s coverage to the 43 million figure. 

The current finding should be replaced with something like the following: 

Although variations in people’s abilities and disabilities across a broad spectrum 

are 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 perceived as having 

conditions they actually may not have or because of misperceptions about the 

limitations resulting from conditions they do have. 

The “Discrete and Insular Minority” Finding 

Another finding of the ADA declares that individuals with disabilities are 

...a discrete and insular minority who have been faced with restrictions and 

limitations, subjected to a history of purposeful unequal treatment, and relegated 

to [a] position 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.

The awkwardly worded finding was cobbled together from language of several different Supreme 

Court decisions establishing criteria for constitutionally “suspect” classifications for equal 

protection purposes. It attempted to improve the chances that courts would subject discrimination 

on the basis of disability to heightened judicial scrutiny under the Equal Protection Clause. 

This congressional finding was intended to assist plaintiffs with disabilities seeking to invoke 

heightened equal protection scrutiny in lawsuits filed after the ADA took effect. In the Sutton

case, Justice Ginsburg filed a concurring opinion in which she stated that this finding provided 

one of the “strongest clues” to congressional intent on the breadth of the definition of disability. 

She concluded that the finding was “a telling indication of [Congress’] intent to restrict the 
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ADA’s coverage to a confined, and historically disadvantaged, class.” Accordingly, she agreed 

with the majority that the actual disability prong of the ADA definition of disability “does not 

reach the legions of people with correctable disabilities.” 

Because of its potential for suggesting that the ADA protects only a narrow class of people, the 

finding should be revised. The “discrete and insular minority” language was not intended to be 

applied to the full scope of persons to whom the ADA provides protection from discrimination. 

Obviously, people who are merely regarded as having a disability are not such a discrete 

minority, because a mistaken perception of disability can happen to any American. The finding 

should be retained in a revised form that clarifies it refers to only some subgroups of the broader 

class the ADA was intended to protect—subgroups that have, in fact, been subjected to a long 

and persistent history of unequal treatment, such as the history of purposeful unequal treatment 

of people with mental retardation cited by Justice Thurgood Marshall in his dissenting opinion in 

the Cleburne case. In addition to mental retardation, people with a variety of other disabilities, 

including psychiatric disabilities, HIV infection, epilepsy, blindness, deafness, paralysis, and 

others can point to an extended history of purposeful unequal treatment and drastic 

discrimination that they have been powerless to rectify. Moreover, the finding should reflect 

the Court’s disfavor, as reflected in Cleburne and other decisions, of classifications based on 

fear, prejudice, and stereotypes about disability.184

The current finding should be revised to read: 

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’s ability 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. 
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Incorporation of a Social Model of Discrimination 

The ADA embodies a social concept of discrimination that views many limitations resulting 

from actual or perceived disabilities as flowing, not from limitations of the individual, but, 

rather, from the existence of unnecessary barriers to full participation in society and its 

institutions. This is in contrast to the medical model of disability that centers on assessments 

of the degree of a person’s functional limitation. To provide context and emphasis to guide 

courts and regulatory agencies, the social model should be made explicit by incorporating 

it as an additional ADA finding as follows: 

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. 

Effect on the Reasonable Accommodation Mandate 

It is important to recognize that a broad interpretation of overall ADA protection does not 

expand the requirement that employers make reasonable accommodations for applicants 

and workers with disabilities beyond reasonable bounds, entitling almost everyone to 

accommodation. The ADA includes language that serves to restrict the scope of the 

accommodation mandate; the Act defines discrimination as including “not making reasonable 

accommodations to the known physical or mental limitations of an otherwise qualified 

individual.” (42 U.S.C. § 12112(b)(5)(A)) (emphasis added). To make these criteria for 

reasonable accommodation more visible, NCD believes it would be prudent to include language 

emphasizing them in the definitional provision that describes what a reasonable accommodation 

is, to dispel any incorrect perception that expanding the ADA’s coverage would produce an 

unprincipled and open-ended accommodation mandate. This approach will be described in 

Section III. D., “Legislative Approaches to Limitations on Reasonable Accommodations 

under Decisions of the Supreme Court.” 
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It is important to recognize that the ADA statutory and regulatory framework requires that 

individuals seeking accommodation must ordinarily request an accommodation.185 Unless the 

physical or mental impairment requiring accommodation is apparent, individuals may be required 

to demonstrate, at times with medical documentation, that they have physical or mental 

limitations that cause them to need accommodation. Moreover, while the individual is entitled to 

an effective accommodation, he or she is not necessarily entitled to the “Cadillac” of alternative 

accommodations; the employer may choose from among several accommodations if each will be 

effective in permitting the individual to perform essential job tasks and have equal opportunity in 

the workplace. Finally, employers always have had, and continue to have, the “undue hardship” 

defense to accommodation requests that prove to be too expensive or disruptive. 

3. Secondary Option for Repairing the Definition of Disability—Restoring the 

Section 504 Approach 

The approach of refocusing the ADA squarely on “discrimination on the basis of disability” 

rather than on attempting to determine who meets various technical criteria to qualify as an 

“individual with a disability” appears to represent the most complete and conceptually sound 

option for restoring the ADA to its intended broad scope. Logically, and in terms of paralleling 

other civil rights laws, this proposed approach is the most appealing. It would involve a return 

to the original form of the ADA as proposed by NCD and in the ADA bills initially introduced 

in Congress. It would resolve problems with the Supreme Court’s narrowed constructions of 

the statutory terms “substantially limits” and “major life activities” by making such terms 

irrelevant. This approach would afford statutory coverage to every person who is subjected to 

discrimination on the basis of a physical or mental impairment whether real or not, consistent 

with congressional understanding reflected in ADA committee reports during the process of 

its enactment. 

If, however, the more fundamental correction proves too difficult to accomplish for political or 

other reasons, amendments clarifying the reach of the current three-prong ADA definition of 

disability may achieve many, though not all, of the same objectives. If defined and interpreted 

properly, the “regarded as” prong of the three-prong definition of disability can serve to 
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ameliorate many of the harmful effects that result from the protected class approach, including 

the mitigating measures problem, the one-job-is-not-enough approach, and the harsh application 

of the first prong of the definition. The “regarded as” prong of the definition would become the 

vehicle for dealing with most complaints of disability discrimination. Whenever a covered entity 

directs any type of negative action toward a person because of that person’s actual or perceived 

physical or mental impairment, then the covered entity should be deemed to have regarded the 

person as having a disability. This would qualify the affected persons as an “individual with a 

disability,” and the analysis and proceedings would move on to questions of whether the negative 

actions of the covered entity constitute discrimination prohibited under the Act and what 

defenses the covered entity may have for its actions. The essence of this approach would be to 

give the concept “regarded as having a disability” a broad meaning that would make it roughly 

equivalent to “treating an individual less well than others because of a physical or mental 

impairment, whether real or perceived.” 

Specific Provisions 

The “regarded as” approach could be accomplished by adding language such as the following to 

the definitions section of the ADA: 

REGARDED AS HAVING SUCH AN IMPAIRMENT.—“Being regarded as 

having such an impairment” under subsection 3(2)(C) of this Act (42 U.S.C. § 

12102(2)(C)) includes being subjected to adverse action or treated less well than 

others because of a physical or mental impairment or perceived impairment; or 

being perceived, whether accurately or not, as having one or more of the 

conditions included in subsection 3(2)(A) of the Act (42 U.S.C. § 12102(2)(A)). 

The term “adverse action” includes but is not limited to limiting, segregating, or 

classifying an individual in a way that adversely affects the opportunities or status 

of such individual. Showing that an individual has been subjected by a covered 

entity to an adverse action relating to employment, on the basis of an actual, past, 

or perceived physical or mental impairment, shall be sufficient to demonstrate that 
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the individual is regarded by the covered entity as having, or having had, an 

impairment that substantially limits the major life activity of working. 

(C) MITIGATING MEASURES.—(i) The determination of whether a condition 

constitutes an impairment shall be made without regard to mitigating measures. 

(ii) The determination of whether an impairment limits an individual’s 

major life activities shall be made without regard to mitigating measures. 

(iii) 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. 

(iv) Being subjected to adverse action or treated less well than others 

because of the use of a mitigating measure or because of a side effect or 

other consequence of the use of such a measure shall constitute “being 

regarded as having such an impairment” under subsection 3(2)(C) of this 

Act (42 U.S.C. § 12102(2)(C)). 

The definition of “regarded as” addresses situations in which (1) a person has a physical or 

mental impairment, which the covered entity regards (perceives or treats) as disqualifying or 

disadvantaging, or (2) a person does not have any actual impairment, but the covered entity 

regards the person as having one. The second provision addresses the problem of mitigating 

measures and expressly declares that they are not to be considered in determining whether a 

person has a disability and whether an impairment constitutes a disability. 

Related Amendments 

Many of the additional amendments suggested in earlier sections, such as authorizing the 

issuance of regulations for implementing the definitions provisions of the ADA, calling for 

supportive construction of the definitions and other provisions, revising or eliminating the 43 

million figure and the “discrete and insular minority” finding, and adding other explanatory 

findings, continue to be applicable under the restoring-the-Section-504-definition approach. 
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To clarify the breadth of the “regarded as” prong, and shore up other elements of the definition, 

while retaining the current three-prong definition of disability, several revisions will be necessary 

to address problems raised by the Supreme Court’s rulings on the meaning of disability, 

including the following: 

A provision should be added to the ADA definitions section to restore the breadth of the concept 

of “major life activities,” along the following lines: 

MAJOR LIFE ACTIVITIES.—(A) IN GENERAL.—The term “major life 

activities of such individual” means activities that either are important in the 

individual’s life or are important for most people in the general population. It 

includes all significant endeavors of ordinary daily and occupational life, such 

as living; breathing; caring for one’s self, including personal-care tasks; eating; 

standing, walking, and running; seeing; hearing; speaking; thinking, learning, 

and concentrating; lifting, reaching, grabbing, climbing, holding, and performing 

manual tasks, including housework and household chores, and manual job tasks; 

working; dating and engaging in sexual activities; procreating; sleeping; 

interacting and communicating with others; reading and writing; driving; and 

engaging in physical exercise. 

(B) INDIVIDUALIZED DETERMINATION.—The determination of whether an 

activity is important in an individual’s life shall be made on a case-by-case basis 

taking into consideration the unique circumstances of the individual. 

(C) MAJOR LIFE ACTIVITY OF WORKING.—(i) An individual need not be 

substantially limited in the major life activity of working to be considered a 

person with a disability for purposes of Title I of the Act. 

(ii) A substantial limitation in the major life activity of working shall be 

determined based on the preferences of the individual regarding the type 

of work and the opportunity available to that individual. Showing that an 

individual is precluded, because of a physical or mental impairment of the 

individual or the employer’s perception of a physical or mental impairment 

of the individual, from performing essential functions of a particular job the 

individual occupies or applies for shall be sufficient to demonstrate that the 

individual is substantially limited in regard to the major life activity of 

working. 

A provision should be added to the ADA definitions section to clarify the meaning of the term 

“substantially limits,” along the following lines: 
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SUBSTANTIALLY LIMITS.—The phrase “substantially limits” means limits an 

individual’s performance of an activity in more than a minor way compared with 

the average person in the general population, including by restricting the 

conditions under which, or the manner or duration in which, the individual can 

perform the activity. 

A provision should be added to the ADA definition of “individual with a disability” to reject 

the rafting of an inappropriate duration restriction on the definition of disability, along the 

following lines: 

DURATION OF CONDITION.—(A) An impairment that otherwise substantially 

limits a major life activity meets the definition of a disability under subsection 

3(2)(A) of the Act (42 U.S.C. § 12102(2)(A)) even if the impairment is temporary 

or of limited duration. 

(B) An individual who is subjected to adverse action or treated less well than 

others because of a physical or mental impairment or perceived impairment is 

“being regarded as having such an impairment” under subsection 3(2)(C) of the 

Act (42 U.S.C. § 12102(2)(C)) even if the impairment or perceived impairment 

is emporary or of limited duration. 

It would be helpful to add a provision to the ADA definition of “individual with a disability” 

to ndorse the concept of per se disabilities, along the following lines: 

PER SE DISABILITY.—(A) Impairments that invariably cause a substantial 

limitation of a major life activity, either inherently or because of general prejudice 

and stigmatization, shall be considered disabilities without any necessity of an 

individualized showing of substantial limitation of a major life activity. 

(B) A particular impairment’s not having been designated as a per se disability 

pursuant to paragraph (A) shall not give rise to any negative implication nor 

increase the burden of demonstrating that the impairment constitutes a disability 

in the circumstances of a particular case. A particular impairment’s not previously 

having been recognized as a per se disability shall not give rise to any 

presumption that it shall not be accorded such status at a later time. 

B. Restoring Remedies Available Under the ADA 

From a legislative drafting standpoint, undoing the harm to ADA remedies caused by the 

Buckhannon and Barnes decisions is a fairly straightforward matter. The Buckhannon decision 
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rejected the “catalyst theory” for awarding attorney’s fees and litigation costs, and the Barnes

Court ruled that punitive damages were not available under the Act. Remedial legislation would 

decree the opposite—that plaintiffs can recover attorney’s fees and litigation expenses under the 

circumstances provided in the catalyst theory, and that punitive damages can be obtained under 

Title II of the Act. Such legislation would presumably maintain the conditions under prior law as 

to when a plaintiff is a “prevailing party” under the catalyst theory and would not narrow the 

types of conduct that put a defendant at risk of punitive damage liability. 

A critical factor in addressing the Buckhannon and Barnes rulings is that both decisions were not 

limited to the ADA, but applied in addition to a variety of other civil rights statutes and other 

federal laws. Accordingly, it would be advantageous to address the problems created by the 

decisions as part of a comprehensive initiative addressing all the laws implicated by the 

decisions. The Leadership Conference on Civil Rights and other civil rights organizations 

worked with congressional allies to develop such a comprehensive or “omnibus” approach. The 

result was a multi-issue legislative proposal that would address a broad array of issues raised by 

court decisions unfavorable to civil rights constituencies, including the problems created by the 

Buckhannon and Barnes decisions. Such legislation, popularly known as the “FAIRNESS Act,” 

was introduced in the 108th Congress and is currently pending.186 It would address some issues, 

particularly the “catalyst theory” and punitive damages issues, which affect claims under the 

ADA, Section 504, and other disability nondiscrimination laws, but would not deal with many of 

the other issues NCD addresses in this report. NCD supports the unified, cross-categorical 

remedial approach of the pending bills, but also believes that targeted legislative proposals are 

necessary to address some of the issues particularly affecting laws that prohibit discrimination on 

the basis of disability. And, until such a broad repudiation of Buckhannon and Barnett is enacted, 

NCD believes it prudent to incorporate the gist of the provisions addressing those issues in its 

proposals for restoring the ADA. 

To restore the availability of punitive damages to private complainants, which often are critical in 

cases in which defendants are shown to have acted with malice, deception, or recklessness in 
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violating Section 504 of the Rehabilitation Act and Title II of the ADA, new subsections need to 

be added to the remedies provision of Title II of the ADA, along the following lines: 

• 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 party may recover equitable and 

legal relief (including compensatory and punitive damages) and attorney’s fees (including 

expert fees) and costs. 

• 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 

party may recover equitable relief and attorney’s fees and costs. 

• In addition to other actions that constitute unlawful intentional discrimination under [the 

first added subsection above], 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 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.187

C. Legislative Approaches to Safety Limitations Under the ADA 

The result of the Echazabal decision should be repaired by adding language to the ADA to 

prohibit a risk-to-self defense. Accordingly, the ADA would permit a “direct-threat” defense only 

for dangers posed to other persons. A new paragraph should be added at the end of the ADA’s 

current definition of “direct threat,” along the following lines: 

CONSTRUCTION.—The term “direct threat” includes a significant risk of 

substantial harm to a customer, client, passerby, or other person that cannot be 
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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. 

In a series of meetings with ADA stakeholders, some participants advised NCD to accept some 

degree of a direct-threat defense for risks posed to the person with a disability, while clarifying 

the limited circumstances within which such a defense should be permitted. Given the prevalence 

of overprotective employer attitudes and misinformation about the implications of physical and 

mental impairments, NCD believes that the better course is to return the scope of the direct-threat 

defense to the precise dimensions it had in the statutory language as enacted, and not allow it to 

be expanded by administrative fiat. At the same time, NCD would underscore that all safetyrelated qualification standards imposed by employers are required to satisfy the ADA’s “directthreat” standard, as well as ADA requirements that they be “job related” and “consistent with 

business necessity.”188 The application of the defense also shall incorporate requirements 

contained in EEOC regulations that the direct-threat defense must be “based on a reasonable 

medical judgment” supported by “the most current medical knowledge and/or the best available 

objective evidence,” and must involve an “individualized assessment of the individual’s present 

ability to safely perform the essential functions of the job,” which considers how imminent the 

risk is and how severe the harm would be.189 The direct-threat defense shall apply only where 

there is “a significant risk of substantial harm” that “cannot be eliminated or reduced by 

reasonable accommodation.”190 Because the ADA makes “direct threat” a defense, it is clear that 

employers attempting to assert health and safety concerns as a justification for their allegedly 

discriminatory actions must bear the burden of proof on each of the issues involved in 

demonstrating the existence of a direct threat.191

D. Legislative Approaches to Limitations on Reasonable 

Accommodations Under Decisions of the Supreme Court 

Correcting the negative implications of the Supreme Court’s decision in U.S. Airways, Inc. 

v. Barnett requires paying attention to the two principal damaging aspects of the decision: 

(1) the Court’s recognition of a reasonableness standard for reasonable accommodations 

separate from undue hardship analysis and (2) its ruling that conflict with a seniority system 
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is ordinarily sufficient to make a requested accommodation unreasonable. Remedying the 

former involves reinstating the “undue hardship” standard as the sole limitation on the 

reasonableness of otherwise appropriate accommodations. This can be achieved by adding 

language to the ADA to clarify that an accommodation qualifies as a “reasonable 

accommodation” if it effectively enables the person with a disability to perform job tasks 

or to benefit from terms, conditions, or benefits of employment on an equal basis, but that 

a covered entity may demonstrate, as a defense, that an accommodation is unreasonable if it 

imposes an undue hardship. 

This can be accomplished by adding to the definition of “reasonable accommodation” an 

additional subsection, such as the following: 

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— 

(1) 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; 

(2) without the accommodation, such limitation will prevent the individual from 

enjoying such equal benefits and privileges; and 

(3) 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. 

This language restates the standard for reasonable accommodation as it existed before the Barnett

decision. The provision, including its “modification or adjustment” and “equal benefits and 

privileges of employment” language, is derived directly from the EEOC regulations’ definition of 

“reasonable accommodation.”192 The first proviso reemphasizes the current ADA requirement 

that reasonable accommodations are required for “the known physical or mental limitations of an 

otherwise qualified individual.” (42 U.S.C. 12112(b)(5)(A)) (emphasis added). Presently, this 

language is in the section of the ADA that establishes what types of acts constitute forms of 
119

employment discrimination prohibited under the Act. The second proviso requires that the 

physical or mental limitation must be such that, without accommodation, it will prevent the 

individual from enjoying equal benefits and privileges of employment (or of job application, 

selection, or training processes). This links entitlement to accommodation to the need for it to 

prevent the denial of equal opportunity. 

These criteria will make the current standards for reasonable accommodation more explicit and 

would clearly invalidate frivolous claims for accommodation; a person with a hangnail or a 

minor cough would not need to have a medical appointment during work hours, but a person who 

requires kidney dialysis might have a legitimate need to do so. A person with a minor headache 

would not need an accommodation to perform job tasks and benefit from job opportunities and 

benefits, but a person with severe migraines might, if the person could show such interference 

with the job. 

A covered entity’s obligation to make a reasonable accommodation can arise in two different 

ways. One situation occurs when the individual with a disability initiates a request for an 

accommodation. In such a case, the person requesting the accommodation is obliged to describe 

why he or she needs an accommodation, including apprising the covered entity of the existence 

and nature of the physical or mental limitation that causes the individual to need accommodation. 

In other circumstances, however, a covered entity may initiate a disadvantageous action toward 

an individual (for example, termination, pay reduction, or assignment to an undesirable position) 

that the covered entity premises on an actual, past, or perceived impairment. Where this occurs, 

the ADA requires the covered entity to consider whether a reasonable accommodation would 

eliminate the need for the disadvantageous action, because the covered entity already “knows” 

(whether accurately or not) about the impairment that it believes is interfering with job 

performance. 

Thus, if a manager says to an employee, “I am going to have to terminate you, or move you to 

a lesser-paying position, because you have condition X and that keeps you from being able to 

adequately perform a certain assigned task,” there are a variety of possible circumstances in 
120

which the worker may find herself or himself. The worker may not have the impairment the 

employer thinks that he or she has, or may not have any impairment at all (“You’ve got the 

wrong employee Jones.”). It may be that the employee has the impairment named but does not 

believe it prevents performance of the task. It may be that the employee has the impairment and it 

interferes with performance, but the task is a nonessential one or an essential one that the 

employee can perform with a reasonable accommodation. Because the employer has initiated an 

adverse action premised on the impairment’s effect on performance, the employer should be 

obligated to make a reasonable accommodation if it will enable performance, without the 

affected individual having to make an additional showing about the details of his or her 

impairment, if any. Where a covered entity has both regarded the individual as having a disability 

and regarded the disability as preventing satisfactory job performance, the covered entity is 

required to demonstrate, as a precondition to any adverse employment action, that reasonable 

accommodation will not resolve the problem. 

The Supreme Court’s ruling with regard to the impact of seniority systems on the right to 

reasonable accommodation under the ADA could be addressed, with greater or lesser efficacy, 

in various ways. At the very least, only seniority systems that are collectively bargained and 

legally enforceable should be permitted to be considered as possibly affecting reasonable 

accommodation rights; a seniority program like that involved in Barnett—one that was imposed 

unilaterally by an employer, was subject to alteration at the discretion of the employer, and was 

not legally enforceable—should not be able to interfere with the right of an employee with a 

disability to a reasonable accommodation. A statutory provision might be drafted to effectuate 

the approach advocated in the ADA committee reports (and cited by Justice Souter in his 

dissenting opinion in Barnett)—that seniority protections contained in a collective bargaining 

agreement should constitute only a factor, and not be determinative, in determining whether an 

accommodation at odds with seniority rules is “reasonable.”193 Otherwise, a presumption, 

rebuttable by an employer in particular circumstances, might be created that a worker’s 

reasonable accommodation rights take precedence over collectively bargained seniority rights. 

A somewhat similar approach would be to codify in the ADA the EEOC regulatory guidance 

that “[t]he terms of a collective bargaining agreement may be relevant to” the determination 
121

whether “the provision of a particular accommodation would be unduly disruptive to [an 

employer’s] other employees or to the functioning of its business.”194

In developing any such remedial provision, it is important to recognize the important rights of 

workers and labor organizations in protecting the integrity of the collective bargaining process 

and the labor agreements they produce.195 Congressional recognition of the importance of such 

concerns is reflected in provisions explicitly protecting seniority interests in both Title VII 

of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.196

Accordingly, labor representatives might be very helpful in crafting provisions of collective 

bargaining agreements that protect reasonable accommodation rights while preserving critical 

labor bargaining interests. In this vein, in amicus curiae participation in one ADA case,197 the 

EEOC took the position that the labor union should be directed to negotiate a variance to protect 

workers’ ADA rights. 

Consistent with NCD’s position that ADA rights should not be subject to limitation by the 

terms of collective bargaining agreements,198 that Section 504 regulations contain a provision 

stating that employer obligations under that Act are not affected by the terms of any collective 

bargaining agreement,199 and that “nothing” in ADA specifications is to “be construed to apply 

a lesser standard” than under such regulations,200 NCD believes that clear and strong legislative 

guidance is needed. Accordingly, provisions should clarify 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 the rights of other employees under 

a seniority system or collective bargaining agreement. In addition, covered entities should be 

directed to incorporate recognition of ADA rights in future collective bargaining agreements. 

Accordingly, a new provision should be added to the “Discrimination” provisions of Title I of 

the ADA, along the following lines: 

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 
122

vacant job position to which the individual with a disability requires transfer 

as a reasonable accommodation in lieu of being discharged by the employer. 

Covered entities under this Title shall include recognition of ADA rights in 

future collective bargaining agreements.
123 

IV. Consolidating the Proposals—

The ADA Restoration Act 

Section III presented an array of proposals (sometimes including alternative approaches) 

designed to address various significant problems created by decisions of the Supreme Court. 

In lieu of cluttering the draft bill with a menu of alternative versions of provisions to deal with 

various issues, the ADA Restoration Act consolidates these piecemeal proposals into a single 

draft bill representing NCD’s best thinking, in light of the problems it addresses and the advice 

it has received from ADA stakeholders and other interested individuals and organizations, for 

returning the ADA to its original course. In the aggregate, the amendments to the ADA are 

designed to reinstate the scope of protection the Act affords, to restore previously available 

remedies to successful ADA claimants, and to repudiate or curtail inappropriate and harmful 

defenses that have been grafted onto the carefully crafted standards of the ADA. 

The text of NCD’s draft bill, preceded by a Section-by-Section Summary of the proposed law 

outlining the highlights and major elements of the proposal, is presented in full at the end of the 

Executive Summary. To avoid unnecessary duplication, those materials are not repeated here, 

and the reader is referred to the Section-by-Section Summary to review specific content. 

The short title of the proposed law—the ADA Restoration Act—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, that 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 statute, the ADA Restoration Act would “restore” the law to its 

original congressionally intended course.
124 
125 

V. Matters Not Addressed in This Report 

In this report, NCD addresses many of the most significant problems that have arisen from the 

ADA decisions of the Supreme Court. The report, however, is not exhaustive. Some issues that 

the Court’s decisions may engender have not yet emerged as sufficiently serious to warrant 

correction at this time. 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 case 

had raised questions regarding the authority of Congress to place certain obligations on states and 

state entities under Title II and to authorize monetary damages when they fail to comply with 

these obligations. These issues were partially exposed in the Court’s prior decision in Board of 

Trustees of the University of Alabama v. Garrett, in which the Court stripped state workers of the 

right to sue their employers for monetary damages for violations of Title I of the ADA. NCD 

issued a policy paper examining the Garrett decision and its implications in detail, and 

discussing its implications as well as the larger economic and social issues it raises. The 

Implications of the Supreme Court’s Decision in Board of Trustees of the University of Alabama 

v. Garrett, paper No. 8 of NCD’s Policy Brief Series: Righting the ADA Papers, can be found at 

http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 

NCD also filed a brief Amicus Curiae in the Garrett case, in which it described NCD’s belief that 

Congress had ample justification for concluding that discrimination by state and local governments 

was a serious problem that justified such agencies to coverage by Titles I and II of the ADA and the 

authorization of monetary damages in suits by private persons subjected to such discrimination. 

The brief can be found at http://www.ncd.gov/newsroom/publications/2002/chevron_amicus.htm. 

NCD has not addressed the Garrett decision in this report, primarily because most state 

workers still retain rights to sue for money damages under Title II of the ADA and under 

Section 504 of the Rehabilitation Act. Before the Supreme Court issued its decision in 

Tennessee v. Lane, NCD had issued a separate policy paper examining the Lane proceedings 

and the issues raised by the Supreme Court’s consideration of the case. Tennessee v. Lane: 
126

The Legal Issues and the Implications for People with Disabilities can be found at 

http://www.ncd.gov/newsroom/publications/2003/legalissues.htm. 

The Lane ruling certainly merits additional study, and NCD expects to issue future analyses 

of the decision and the questions it leaves open. The report, however, does not attempt to 

address such issues. 

In addition, this report does not attempt to address the many and varied issues on which some 

lower courts have made unfortunate, damaging ADA rulings. One issue on which the Supreme 

Court offered some amelioration of restrictive lower court decisions—the question of whether 

individuals who apply for or receive Social Security disability benefits should be precluded, as 

unqualified to work, from pursuing ADA cases—has continued to surface in the lower courts, 

often with results unfavorable to litigants with disabilities. In Cleveland v. Policy Management 

Systems Corporation, the Court held that ADA plaintiffs should be allowed to “proffer a 

sufficient explanation” as to why their disability benefit status or representations were not 

inconsistent with their ability to pursue an ADA claim, and that disability benefit claimants or 

recipients should not be required to rebut a presumption that they are stopped from bringing 

ADA cases. Despite this ruling, many lower courts have continued to make it almost impossible 

for such individuals to maintain ADA suits. If such a trend continues, NCD may need to consider 

possible legislative remedies. NCD has chosen to address only those issues that currently present 

a substantial problem to ADA implementation as a result of an unfavorable decision of the 

nation’s highest court. 
127 

VI. Conclusion 

Many Americans with disabilities feel that a series of negative court decisions is reducing their 

status to “second-class citizens,” a status that the ADA was supposed to remedy forever.201 In 

this report, NCD, which first proposed the enactment of an ADA and developed the initial 

version of the legislation, offers legislative proposals designed to get the ADA back on track. 

The title of this report, Righting the ADA, borrows a metaphor from nautical terminology. 

When a ship or boat has gotten off course as a result of a storm, other environmental conditions, 

or other causes, it is necessary to “right” its course. When a vessel is listing (tilting) excessively 

or has tipped over, it is necessary to “right” it by keeping it on an even keel so that the vessel can 

return to its upright position. Similarly, 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, as NCD has contended in many of its other reports. 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 to the ADA, resulting in the diminished civil rights of people with 

disabilities. In response to the Court’s damaging decisions, the report attempts, particularly in 

Section II, to document and explain the problems they create and, in Sections III and IV, to 

advance legislative proposals to reverse their impact. For more extensive and detailed analyses 

of the issues raised by the Supreme Court’s unfavorable decisions, refer to the series of papers 

NCD has published on its Web site under the title Policy Brief Series: Righting the ADA Papers. 

They can be found at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 
128

NCD is highly aware that the legislative proposals presented in this report are hardly the last 

word on these issues. In presenting its original version of the ADA in 1988, NCD observed the 

following: 

The drafting of legislation is a developmental process that reflects negotiation, 

compromise, and continuous revision; the Council recognizes that the draft 

proposal presented on the succeeding pages is not the final version. The Council 

believes, however, that the draft presented herein represents a significant step 

toward the introduction and eventual passage of such a statute. The Council is 

confident that the “Americans with Disabilities Act” is representative of the need 

for expanded nondiscrimination protection it has heard repeatedly voiced by 

[people] with disabilities, and is convinced that the enactment of such a statute is 

one key to increased independence and quality of life for [people] with 

disabilities. 

(On the Threshold of Independence, p. 23.) 

Likewise, NCD offers its ADA Restoration Act proposal with the full expectation that, before 

it is enacted, it will be tweaked, tinkered with, and hopefully improved on. NCD is confident, 

however, that the development of a concrete and multifaceted ADA Restoration Act proposal 

is a significant step in the much-needed process of Righting the ADA.
129 

Appendix 

Mission of the National Council on Disability 

Overview and Purpose 

The National Council on Disability (NCD) is an independent Federal agency with 15 members 

appointed by the President of the United States and confirmed by the U.S. Senate. The overall 

purpose of NCD is to promote policies, programs, practices, and procedures that guarantee equal 

opportunity for all individuals with disabilities regardless of the nature or significance of the 

disability and to empower individuals with disabilities to achieve economic self-sufficiency, 

independent living, and inclusion and integration into all aspects of society. 

Specific Duties 

The current statutory mandate of NCD includes the following: 

• Reviewing and evaluating, on a continuing basis, policies, programs, practices, and 

procedures concerning individuals with disabilities conducted or assisted by federal 

departments and agencies, including programs established or assisted under the 

Rehabilitation Act of 1973, as amended, or under the Developmental Disabilities 

Assistance and Bill of Rights Act, as well as all statutes and regulations pertaining to 

federal programs that assist such individuals with disabilities, to assess the effectiveness 

of such policies, programs, practices, procedures, statutes, and regulations in meeting 

the needs of individuals with disabilities. 

• Reviewing and evaluating, on a continuing basis, new and emerging disability policy 

issues affecting individuals with disabilities at the Federal, state, and local government 

levels and in the private sector, including the need for and coordination of adult services, 

access to personal assistance services, school reform efforts and the impact of such efforts 

on individuals with disabilities, access to health care, and policies that act as disincentives 

for individuals to seek and retain employment. 

• Making recommendations to the President, Congress, the Secretary of Education, the 

director of the National Institute on Disability and Rehabilitation Research, and other 

officials of Federal agencies about ways to better promote equal opportunity, economic 

self-sufficiency, independent living, and inclusion and integration into all aspects of 

society for Americans with disabilities. 

• Providing Congress, on a continuing basis, with advice, recommendations, legislative 

proposals, and any additional information that NCD or Congress deems appropriate. 

• Gathering information about the implementation, effectiveness, and impact of the 

Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.). 
130

• Advising the President, Congress, the commissioner of the Rehabilitation Services 

Administration, the assistant secretary for Special Education and Rehabilitative Services 

within the Department of Education, and the director of the National Institute on Disability 

and Rehabilitation Research on the development of the programs to be carried out under 

the Rehabilitation Act of 1973, as amended. 

• Providing advice to the commissioner of the Rehabilitation Services Administration with 

respect to the policies and conduct of the administration. 

• Making recommendations to the director of the National Institute on Disability and 

Rehabilitation Research on ways to improve research, service, administration, and the 

collection, dissemination, and implementation of research findings affecting people with 

disabilities. 

• Providing advice regarding priorities for the activities of the Interagency Disability 

Coordinating Council and reviewing the recommendations of this council for legislative 

and administrative changes to ensure that such recommendations are consistent with 

NCD’s purpose of promoting the full integration, independence, and productivity of 

individuals with disabilities. 

• Preparing and submitting to the President and Congress an annual report titled National 

Disability Policy: A Progress Report. 

International 

In 1995, NCD was designated by the Department of State to be the U.S. government’s official 

contact point for disability issues. Specifically, NCD interacts with the special rapporteur of the 

United Nations Commission for Social Development on disability matters. 

Consumers Served and Current Activities 

Although many government agencies deal with issues and programs affecting people with 

disabilities, NCD is the only Federal agency charged with addressing, analyzing, and making 

recommendations on issues of public policy that affect people with disabilities regardless of age, 

disability type, perceived employment potential, economic need, specific functional ability, veteran 

status, or other individual circumstance. NCD recognizes its unique opportunity to facilitate 

independent living, community integration, and employment opportunities for people with 

disabilities by ensuring an informed and coordinated approach to addressing the concerns of people 

with disabilities and eliminating barriers to their active participation in community and family life. 

NCD plays a major role in developing disability policy in America. In fact, NCD originally 

proposed what eventually became the ADA. NCD’s present list of key issues includes improving 

personal assistance services, promoting health care reform, including students with disabilities in 

high-quality programs in typical neighborhood schools, promoting equal employment and 

community housing opportunities, monitoring the implementation of the ADA, improving 

assistive technology, and ensuring that people with disabilities who are members of diverse 

cultures fully participate in society. 
131

Statutory History 

NCD was established in 1978 as an advisory board within the Department of Education (P.L. 95-

602). The Rehabilitation Act Amendments of 1984 (P.L. 98-221) transformed NCD into an 

independent agency.
132 
133 

Endnotes 

1 Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989). 

2

 Section 3(4) of the Civil Rights Act of 1991 declared that one of the Act’s purposes was “to 

respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights 

statutes to provide adequate protection to victims of discrimination.” The Act reversed or altered, 

in whole or in part, the implications of the following cases: Wards Cove v. Atonio, 490 U.S. 642 

(1989); Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Price Waterhouse v. Hopkins,

490 U.S. 228 (1989); Martin v. Wilks, 490 U.S. 755 (1989); EEOC v. Arabian American Oil 

Company, 490 U.S. 244 (1991); Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989); West 

Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991); Library of Congress v. Shaw,

478 U.S. 310 (1986). 

3 National Council on Disability, Equality of Opportunity: The Making of the Americans with 

Disabilities Act at 184 (1997).

4

 Statement by Vice President Al Gore, December 14, 1998, quoted in the Presidential Task 

Force on Employment of Adults with Disabilities, Working on Behalf of Americans with 

Disabilities: President Clinton and Vice President Gore: Goals and Accomplishments at 17. 

5

 George W. Bush, Presidential Proclamation on the Anniversary of the Americans with 

Disabilities Act, 2002 (July 26, 2002). 

6

 NCD, Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities 

Act at 1 (2000).

7

 NCD, Voices of Freedom: America Speaks Out on the ADA at 26 (1995). 

8 Id. at 27. 

9

 George W. Bush, Presidential Proclamation on the Anniversary of the Americans with 

Disabilities Act, 2002 (July 26, 2002). 

10 See Mary Crossley, “The Disability Kaleidoscope,” 74 Notre Dame Law Review 621, 622 

(1999). 

11 Tudyman v. United Airlines, 608 F. Supp. 739 (C.D.Cal. 1984). 

12 Morrow v. City of Jacksonville, 941 F. Supp. 816, 823 n. 3 (E.D.Ark. 1996). 

13 See, e.g., Stone v. St. Joseph’s Hospital of Parkersburg, 538 S.E.2d 389, 400-402, 404 (W.Va. 

2000), in which the Supreme Court of West Virginia, after acknowledging that the state law had 

been amended in 1989 to adopt the federal three-prong definition of disability, chose to reject the 
134

“restrictive approach” of federal interpretation of the definition, endorsing an “independent 

approach ... not mechanically tied to federal disability discrimination jurisprudence.” The court 

also cited a number of cases from other states that had interpreted the definition of disability 

more expansively than under federal nondiscrimination laws. Id. at 405 and n. 23. Likewise, in 

Dahill v. Police Department of Boston, 434 Mass. 233, 748 N.E.2d 956 (2001), the 

Massachusetts Supreme Judicial Court embraced virtually every argument advanced by disability 

rights advocates that the United States Supreme Court had rejected in Sutton v. United Airlines, 

and ruled that mitigating measures should not be considered in determining whether an 

individual has a “handicap” under Massachusetts antidiscrimination law. According to the Dahill

Court, the public policy underlying the antidiscrimination statute supported its interpretation that 

mitigating measures should be excluded, while embracing the Sutton standard would “exclude[ ] 

from the statute’s protection numerous persons who may mitigate serious physical or mental 

impairments to some degree, but who may nevertheless need reasonable accommodations to 

fulfill the essential functions of a job.” Id. at 240 and n. 10. 

14 See, e.g., Granovsky v. Canada, [2000] 1 S.C.R. 703, in which the Supreme Court of Canada 

expressly rejected the restrictive approach of the U.S. Supreme Court in Sutton v. United 

Airlines, noted the “ameliorative purpose” and “remedial component” of the disability 

nondiscrimination provision of the Canadian Charter of Rights and Freedoms, and adopted an 

approach in which the focus is “not on the impairment as such, nor even any associated 

functional limitations, but is on the problematic response of the [defendant] state to either or both 

of these circumstances.” The Court added that it was the alleged discriminatory action “that 

stigmatizes the impairment, or which attributes false or exaggerated importance to the functional 

limitations (if any) ...” Similarly, in Quebec v. Canada, [2000] 1 S.C.R. 665, the Supreme Court 

of Canada noted that “[h]uman rights legislation is [to be] given a liberal and purposive 

interpretation,” and ruled, “The objectives of the Charter, namely the right to equality and 

protection against discrimination, cannot be achieved unless we recognize that discriminatory 

acts may be based as much on perception and myths and stereotypes as on the existence of actual 

functional limitations. Since the very nature of discrimination is often subjective, assigning the 

burden of proving the objective existence of functional limitations to a victim of discrimination 

would be to give that person a virtually impossible task. Functional limitations often exist only in 

the mind of other people, in this case that of the employer.” The Court ruled that “a ‘handicap,’ 

therefore, includes ailments which do not in fact give rise to any limitation or functional 

disability.” 

15 Some states, such as California and Rhode Island, have amended their disability 

nondiscrimination statutes to reject federal case law narrowing the scope of individuals protected. 

Others, such as Connecticut, New Jersey, and New York have never adopted the rigid and 

stringent concept of “disability” consisting of an “impairment” which “substantially limits” one 

or more major life activities. For a discussion of state laws that have deviated from the restrictive 

federal model, see NCD’s paper titled Defining “Disability” in a Civil Rights Context: The 

Courts’ Focus on the Extent of Limitations as Opposed to Fair Treatment and Equal 

Opportunity. Paper No. 6 of NCD’s Policy Brief Series: Righting the ADA Papers can be found 

at http://www.ncd.gov/newsroom/publications/2003/policybrief.htm. 
135

16 For example, the definition of disability provisions of Australia’s Disability Discrimination 

Act of 1992 (4.(1)) and of Ireland’s Employment Equality Act (1998) (2), both of which were 

adopted after the ADA was enacted, are framed in very broad terms that encompass not only a 

wide variety of currently existing conditions, but also include any condition that previously 

existed but no longer does, that “may exist in the future,” or that “is imputed to a person.” 

17 Todd v. Academy Corporation, 57 F. Supp. 2d 448, 453-54 (S.D. Tex. 1999). 

18 Mahon v. Crowell, 295 F.3d 585, 590 (6th Cir. 2002). 

19 Id. at 215. 

20 Waldrip v. General Elec. Co., 325 F.3d 652, 655 (5th Cir. 2003), citing Williams, 534 U.S. at 

194; Albertson’s, 527 U.S. at 563 n. 10; and Sutton, 527 U.S. at 478-80. 

21 Black v. Roadway Express, Inc., 297 F.3d 445, 449 n. 4 (6th Cir. 2002) (citations omitted). 

22 See, e.g., Sheehan v. City of Gloucester, 2002 WL 389297, p. *3 (D.Mass. 2002) (“The Court 

has deemed the EEOC regulations to be of more questionable authority––because no agency has 

been authorized to issue regulations further interpreting the term ‘disability’ in the ADA––but 

has cited these regulations as well in cases where both parties have accepted them as 

reasonable.”); EEOC v. AMR Eagle, Inc., 2001 WL 257905, p. *14 n. 17 (N.D.Tex. 2001) (“The 

Supreme Court in Sutton v. United Air Lines, Inc. questioned the validity of the EEOC’s 

regulations, noting that no agency had been given authority to interpret the term ‘disability.’ The 

Court nevertheless passed on the issue of what deference, if any, they were due since both parties 

accepted the validity of the regulations and determining their validity was unnecessary to decide 

the case. The same applies here, so this Court will not discuss the validity of or the deference to 

be accorded the EEOC’s regulations.”) (citations omitted); EEOC v. Exxon Corporation, 124 F. 

Supp.2d 987, 994 (N.D.Tex. 2000) (“The Supreme Court in Sutton v. United Air Lines, Inc.

questioned the validity of the EEOC’s regulations, noting that no agency had been given 

authority to interpret the term ‘disability.’ The Court, however, passed on the issue of what 

deference, if any, they were due since both parties accepted the validity of the regulations and 

determining their validity was unnecessary to decide the case. The same applies here, so this 

Court will not discuss the validity of or the deference to be accorded the EEOC’s regulations.”) 

(citations omitted). 

23 See, e.g., Muller v. Costello, 187 F.3d 298, 312 (2d Cir.1999) (deference to the EEOC’s 

interpretations “remains the law of this Circuit”); Karmel v. Liz Claiborne, Inc., 2002 WL 

1285253, p. *6 n. 3 (S.D.N.Y. 2002) (“The Court is mindful that the Supreme Court has recently 

called into question the degree of deference which should be accorded the EEOC’s regulations 

interpreting the ADA. See Sutton v. United Airlines, Inc., 527 U.S. 471, 479-480 (1999). 

However, in this circuit, the EEOC’s regulations continue to command great deference. See 

Muller v. Costello, 187 F.3d 298, 312 (2d Cir.1999).”); Beason v. United Technologies 

Corporation, 213 F. Supp.2d 103, 108-109 (D.Conn. 2002) (“29 C.F.R. 1630.2(h)(1); see
136

Francis v. City of Meriden, 129 F.3d 281, 283 n. 1 (2d Cir.1997) (stating in regard to EEOC 

regulations defining ‘disability’ under the ADA, ‘[w]e accord great deference to the EEOC’s 

interpretation of the ADA’); see also Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 563 n. 10, 

119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (‘[W]e assume, without deciding, that [the regulations 

and interpretive guidance promulgated by the EEOC relating to the ADA’s definitional section] 

are valid.’); but see Sutton, 527 U.S. at 479-80, 119 S.Ct. 2139 (assuming without deciding that 

EEOC regulations defining disability under ADA are valid, but noting that the EEOC has not 

been given authority to issue regulations defining disability under ADA).”); D’Amato v. Long 

Island R.R. Co., 2001 WL 563569, p. *4 (S.D.N.Y. 2001) (“As the agency with principal 

responsibility for enforcing the ADA, the EEOC’s regulations are entitled to deference. See, e.g., 

Muller v. Costello, 187 F.3d 298, 312 (2d Cir.1999) (deference to the EEOC’s interpretations 

‘remains the law of this Circuit’). But see Sutton v. United Airlines, Inc., 527 U.S. 471, 479-80 

(1999) (questioning the authority of the EEOC to issue regulations interpreting the ADA).”). 

24 EEOC v. Browning-Ferris, Inc., 262 F. Supp.2d 577, 583 n. 7 (D.Md. 2002), quoting Barbara 

Lindemann and Paul Grossman, Employment Discrimination Law 1208 (3d ed. 1996 and Supp. 

2000). 

25 See Arlt v. Missouri Department of Corrections, 229 F. Supp.2d 938, 944 (E.D.Mo. 2002) 

(“The Act does not define the terms ‘physical or mental impairment,’ ‘substantially limits,’ or 

‘major life activities,’ and no agency has been given authority to issue regulations implementing 

the generally applicable provisions of the ADA. Sutton v. United Air Lines, Inc., 527 U.S. 471, 

479 (1999). However, the Department of Justice (DOJ), which Congress assigned to write the 

regulations for Subchapter III of the ADA, defines ‘physical or mental impairment’ as including 

‘specific learning disabilities.’ See 28 C.F.R. 36.104 (2000). The DOJ’s regulations further 

define ‘major life activities’ as including ‘learning.’ Id.”). 

26 See, e.g., Duncan v. Washington Metropolitan Area Transit Authority, 240 F.3d 1110, 1115 n. 

2 (D.C.Cir. 2001) (“The Sutton Court declined to resolve whether deference is owed to the 

EEOC’s ADA regulations, 527 U.S. at 480, but quoted this regulation’s factors approvingly, Id. 

at 491-92.”); Kasten v. Port Authority of New York and New Jersey, 2002 WL 31102689, p. *3 

(E.D.N.Y. 2002) (“Cf. Sutton, 527 U.S. at 479-80 (noting, in contrast, that ‘no agency ... has been 

given authority to issue regulations implementing the generally applicable provisions of the 

ADA, see ‘‘ 12101-12102, [which include the definition of ‘disability’ and] which fall outside 

Titles I-V,’ and declining to address amount of deference due to EEOC regulations that 

nonetheless discuss the latter provisions).”). 

27 Capizzi v. County of Placer, 135 F. Supp.2d 1105, 1110 (E.D.Cal. 2001) (additional citations 

omitted). 

28 Id. at 1111. The specific issue the court was considering was whether working is a major life 

activity. The court noted that the EEOC had included working in the list of major life activities, 

but had treated it “as a last resort.” Id. (citing 29 C.F.R. Pt. 1630, App., 1630.2(j)(1998)) (“If an 

individual is substantially limited in any other major life activity, no determination should be 
137

made as to whether the individual is substantially limited in working.”). The court noted that in 

Sutton the Supreme Court had expressed reservations about the validity of the definitional 

provisions generally, but specifically regarding whether working is a major life activity (see 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, found at 

http://www.ncd.gov/newsroom/publications/2003/policybrief.htm). The court noted, on the other 

hand, “that the Ninth Circuit, while recognizing the Sutton dicta, has considered working a major 

life activity without discussion, but also without hesitancy. See Broussard v. University of 

California, 192 F.3d 1252, 1255-6 (9th Cir.1999). Moreover, no published Ninth Circuit opinion 

has rejected working as a major life activity.” Id. Accordingly, the court decided to accept 

working as a major life activity. 

29 See, e.g., Schmidt v. Safeway, Inc., 864 F. Supp. 991, 998 (D.Or. 1994) (“employer cannot 

terminate the employee because he is temporarily unqualified if that condition can be alleviated 

through reasonable accommodation”); Wood v. County of Alameda, 5 AD Cases 173, 181 

(N.D.Cal. 1995) (defendant’s motion for summary judgment denied and preliminary injunction 

granted to plaintiff; factor of “permanent or long-term impact of the individual’s impairment” in 

EEOC ADA Title I regulation not meant to be dispositive); Patterson v. Downtown Medical and 

Diagnostic Center, Inc., 866 F. Supp. 1379, 1381 (M.D.Fla. 1994) (defendant’s motion to 

dismiss denied; “the definition of ‘disability’ does not require permanency”). 

30 Matczak v. Frankford Candy and Chocolate Co., 96-CV-3083, 6 AD Cases 390, 392-93 

(January 14, 1997). 

31 Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996). 

32 Gordon v. E.L. Hamm and Associates, Inc., 100 F.3d 907 (11th Cir. 1996). 

33 Sanders v. Arneson Products, Inc., 91 F.3d 1351 (9th Cir. 1996). 

34 Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997). 

35 Hamm v. Runyon, 51 F.3d 721 (7th Cir. 1995); Sutton v. New Mexico Department of Children, 

Youth and Families 922 F. Supp. 516, 517 (D.N.M. 1996). 

36 McDonald v. Commonwealth of Pennsylvania, 62 F.3d 92 (3d Cir. 1995). 

37 Rakestraw v. Carpenter Company, 898 F.Supp. 386 (N.D.Miss. 1995). 

38 Roush v. Weastec, Inc., 96 F.3d 840 (6th Cir. 1996). 

39 Stevens v. Stubbs, 576 F. Supp. 1409, 1414 (N.D. Ga. 1983). 

40 Memorandum on the Definition of Disability, EEOC Compliance Manual 902.4(d) (March 15, 

1995). 
138

41 S. Rep. No. 116, 101st Cong., 1st Sess., 22 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess. 

pt. 2, 52 (1990). 

42 922 F. Supp. 516 (D.N.M. 1996). 

43 Id. at 517. 

44 Id.

45 Id. at 518-19. 

46 Id. at 519, quoting D. Todd Arney, Note, “Survey of the Americans with Disabilities Act, 

Title I: With the Regulations In, Are the Criticisms Out?,” 31 Washburn L.J. 522, 524 (1994). 

47 105 F.3d 12 (1st Cir. 1997). 

48 Id. at 13-14. 

49 Id. at 13. 

50 Id. at 16. 

51 Id.

52 898 F. Supp. 386 (N.D.Miss. 1995). 

53 Id. at 388. 

54 Id. at 390. 

55 Id. at 389. The defendant alleged that Rakestraw was fired for lateness, a charge that 

Rakestraw argued was “mere pretext.” Id.

56 Memorandum on the Definition of Disability, EEOC Compliance Manual 902.4(d) (March 15, 

1995). 

57 898 F. Supp. at 389. 

58 Id.

59 Id. at 390. 

60 Id.

61 Id.

62 Id.
139

63 Id. at 389. 

64 Richard A. Bales, Once Is Enough: Evaluating When a Person Is Substantially Limited in Her 

Ability to Work, 11 Hofstra Lab. L. J. 203, 239 (1993). 

65 Collins v. Yellow Freight System, Inc., 942 F. Supp. 449, 453 (W.D.Mo. 1996). 

66 95 C 5062, 5 AD Cases 1635 (N.D.Ill. Jan. 30, 1996). 

67 Id. at 5 AD Cases 1639. 

68 See, e.g., Bailey v. Georgia-Pacific Corporation, 306 F.3d 1162, 1167-68 (1st Cir. 2002.); 

Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-47 

(2d Cir.2002); Burch v. Coca-Cola Co., 119 F.3d 305, 316-17 (5th Cir. 1997); Wilson v. 

International Brotherhood of Teamsters, Chauffeurs and Warehousemen, 47 F. Supp.2d 1347, 

1359 (S.D.Fla. 1999); Goldsmith v. Jackson Memorial Hospital Public Health Trust, 33 F. 

Supp.2d 1336, 1341-42 (S.D.Fla. 1998). 

69 See, e.g., Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847, 860 (5th Cir. 1999). 

70 See, e.g., Weber v. Strippit, Inc., 186 F.3d 907, 913 (8th Cir. 1999). 

71 See, e.g., Deas v. River West, L.P., 152 F.3d 471, 476-79 (5th Cir. 1998). 

72 See, e.g., Kapche v. City of San Antonio, 304 F.3d 493, 497-98 (5th Cir. 2002); Beaulieu v. 

Northrop Grumman Corporation, 161 F. Supp.2d 1135, 1142 (D.Hawaii 2000). See, also, Sutton 

v. United Airlines, 527 U.S. 471, 483-84 (1999) (dicta) (to “find all diabetics to be disabled” 

would be “contrary to both the letter and the spirit of the ADA”). 

73 See, e.g., Godron v. Hillsborough County, 2000 WL 1459054, *2 n.3 (D.N.H., 2000); Hirsch 

v. National Mall and Services, Inc., 989 F. Supp. 977, 981-82 (N.D.Ill. 1997); Pimental v. 

Dartmouth-Hitchcock Clinic, 236 F. Supp.2d 177, 182 (D.N.H., 2002); Schwertfager v. City of 

Boynton Beach, 42 F. Supp.2d 1347, 1359 (S.D.Fla. 1999). 

74 See, e.g., Bridges v. City of Bossier, 92 F.3d 329, 336 n. 11 (5th Cir. 1996). 

75 See, e.g., Lanci v. Andersen, 2000 WL 329226, *3 (S.D.N.Y. 2000); Purcell v. Pennsylvania 

Department of Corrections, 1998 WL 10236, *8 (E.D.Pa. 1998). 

76 See, e.g., White v. Honda of America Manufacturing, Inc., 2003 WL 203111, *3-*4 (S.D.Ohio 

2003); Ventura v. City of Independence, 108 F.3d 1378, 1997 WL 94688, at *1-*2 (6th Cir. 

1997) (unpublished opinion) (individualized inquiry of effects of plaintiff’s asthma); Minnix v. 

City of Chillicothe, 205 F.3d 1341, 2000 WL 191828, at *2 (6th Cir. 2000); Heilweil v. Mount 

Sinai Hospital, 32 F.3d 718, 724 (2d Cir. 1994); Boone v. Reno, 121 F. Supp.2d 109, 111 

(D.D.C. 2000); Castro v. Local 1199, National Health and Human Services Employees Union, 
140

964 F. Supp. 719, 725 (S.D.N.Y. 1997); Gaddy v. Four B Corporation, 953 F.Supp. 331, 337 

(D.Kan. 1997); Emery v. Caravan of Dreams, Inc., 879 F. Supp. 640, 642-43 (N.D.Tex. 1995). 

77 See, e.g., Perkins v. St. Louis County Water Co., 160 F.3d 446, 448 (8th Cir. 1998). 

78 See, e.g., Quick v. Tripp, Scott, Conklin and Smith, P.A., 43 F. Supp.2d 1357, 1366-67 

(S.D.Fla. 1999); Ellis v. Mohenis Services, Inc., 1998 WL 564478, *3 (E.D.Pa. 1998); Reese v. 

American Food Service, 2000 WL 1470212, *5 (E.D.Pa. 2000). 

79 See, e.g., Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 155 (1st Cir. 1998); Davidson v. 

Midelfort Clinic, Ltd., 133 F.3d 499, 505-06 (7th Cir. 1998); Demar v. Car-Freshner 

Corporation, 49 F. Supp.2d 84, 89-90 (N.D.N.Y. 1999); Bingham v. Oregon School Activities 

Association, 37 F. Supp.2d 1189, 1195 (D.Or. 1999). 

80 White v. Honda of America Manufacturing, Inc., 2003 WL 203111, *3 (S.D.Ohio 2003) (“No 

impairment constitutes a disability per se.). 

81 Jones v. Rehabilitation Hospital of Indiana, 2000 WL 1911884, *3-*4 (S.D.Ind. 2000); Ihekwu 

v. City of Durham, N.C., 129 F. Supp.2d 870, 879 (M.D.N.C. 2000). 

82 See, e.g., Thomas v. New Commodore Cruise Lines Ltd., 202 F. Supp.2d 1356, 1360-61 

(S.D.Fla. 2002); Cruz Carrillo v. AMR Eagle, Inc., 148 F.Supp.2d 142, 145 (D.Puerto Rico 

2001); Solorio v. American Airlines, Inc., 2002 WL 485284, *4 (S.D.Fla. 2002); U.S. v. Happy 

Time Day Care Center, 6 F. Supp.2d 1073, 1078-79 (W.D.Wis. 1998). 

83 6 F. Supp.2d 1073, 1078-79 (W.D.Wis. 1998). 

84 1999 WL 1611328 (N.D.Tex. 1999). 

85 See S. Rep. No. 101-116, at 22 (1989); H.R. Rep. No. 101-485, pt. 2 at 52 (1990) (Committee 

on Education and Labor); H.R. Rep. No. 101-485, pt. 3 at 28-29 (1990) (Committee on the 

Judiciary). 

86 See S. Rep. No. 101-116, at 22 (1989); H.R. Rep. No. 101-485, pt. 2 at 52 (1990) (Committee 

on Education and Labor); EEOC Compliance Manual (Number 915.002, March 14, 1995) at 

p. 902-21. 

87 See H.R. Rep. No. 101-485, pt. 2 at 52 (1990) (Committee on Education and Labor) (“hard of 

hearing”); H.R. Rep. No. 101-485, pt. 3 at 28-29 (1990) (Committee on the Judiciary) (“hearing 

loss”). 

88 See S. Rep. No. 101-116, at 22 (1989); H.R. Rep. No. 101-485, pt. 2 at 52 (1990) (Committee 

on Education and Labor); H.R. Rep. No. 101-485, pt. 3 at 28-29 (1990) (Committee on the 

Judiciary). 
141

89 See EEOC Compliance Manual (Number 915.002, March 14, 1995) at p. 902-21. 

90 See H.R. Rep. No. 101-485, pt. 3 at 28-29 (1990) (Committee on the Judiciary). 

91 See EEOC Compliance Manual (Number 915.002, March 14, 1995) at p. 902-21. 

92 See S. Rep. No. 101-116, at 22 (1989); H.R. Rep. No. 101-485, pt. 2 at 52 (1990) (Committee 

on Education and Labor); H.R. Rep. No. 101-485, pt. 3 at 28-29 (1990) (Committee on the 

Judiciary). 

93 See S. Rep. No. 101-116, at 22 (1989); H.R. Rep. No. 101-485, pt. 2 at 52 (1990) (Committee 

on Education and Labor); EEOC Compliance Manual (Number 915.002, March 14, 1995) at 

p. 902-21. 

94 See EEOC Compliance Manual (Number 915.002, March 14, 1995) at p. 902-21. 

95 527 U.S. 471, 483-84 (1999). 

96 See, e.g., Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002); Nordwall v. Sears, 

Roebuck and Co., 46 Fed App. 364, 2002 WL 31027956 (7th Cir. 2002) (unpublished). 

97 Chenoweth v. Hillsborough Co., 250 F.3d 1328 (11th Cir. 2001), cert denied, 534 U.S. 1131 

(2002); EEOC v. Sara Lee, 237 F.3d 349 (4th Cir. 2001); Todd v. Academy Corporation, 57 F. 

Supp.2d 448 (S.D.Tex. 1999). 

98 Todd v. Academy Corporation, 57 F. Supp.2d 448, 453-54 (S.D. Tex. 1999). 

99 534 U.S. 184, 197 (2002). 

100 Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. 2001). 

101 Iverson v. Sports Depot, 2002 WL 745824 (D.Mass. 2002). 

102 Id. at *2. 

103 Dorfsman v. Law School Admissions Council, Inc., 2001 WL 1754726 (E.D.Pa. 2001). 

104 Id. at *5. 

105 See, e.g., J.C. v. Regional School District 10, Board of Education, 278 F.3d 119 (2d Cir. 

2002) (student who obtained all requested relief––including finding of eligibility for special 

education services and termination of expulsion hearing––not entitled to attorneys’ fees under 

either the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act 

because relief was not “judicially sanctioned”). 
142

106 Correspondence from Lauren Young, legal director, Maryland Disability Law Center, to 

Sharon Masling, November 11, 2002, quoted in text accompanying endnote 110 in The Impact of 

the Supreme Court’s ADA Decisions on the Rights of Persons 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. 

107 E-mail correspondence from Tim Sindelar, senior attorney, Disability Law Center, to Sharon 

Masling, October 29, 2002, quoted in text accompanying endnote 111 in The Impact of the 

Supreme Court’s ADA Decisions on the Rights of Persons 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. 

108 E-mail correspondence from Jeff Spitzer-Resnick, managing attorney, Wisconsin Coalition 

for Advocacy, to Sharon Masling, October 4, 2002, quoted in text accompanying endnote 112 in 

The Impact of the Supreme Court’s ADA Decisions on the Rights of Persons 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. 

109 Correspondence from Lauren Young, legal director, Maryland Disability Law Center, to 

Sharon Masling, November 11, 2002, quoted in text accompanying endnote 110 in The Impact of 

the Supreme Court’s ADA Decisions on the Rights of Persons 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. 

110 503 U.S. 60, 70-71 (1992). 

111 See, e.g., DeLeo v. City of Stamford, No. 592 CV80, 4 A.D. Cases 427, 430 (D.Conn. Mar. 

14, 1995). 

112 Moreno v. Consolidated Rail Corporation, 99 F.3d 782 (6th Cir. 1996). 

113 Gorman v. Easley, 257 F.3d 738, 745 (8th Cir. 2001). 

114 King v. City of Chicago, 2002 WL 31101273 (N.D. Ill. 2002). 

115 Denmeade v. King, 2002 WL 31018148 (W.D.N.Y. 2002). 

116 One attorney provided the following description of the impact of the Barnes decision on a 

class action the attorney had filed against a city housing authority: 

Liability is not the real issue, as the case is clear. [The defendant agency] has acted for 

years to deny non-elderly people with disabilities housing opportunities to which they 

were legally entitled. [The defendant agency] has also failed miserably to comply with 

accessibility requirements of Section 504 [and] the ADA . . . [However], since the 

Gorman decision has stripped us of our claim for punitive damages, the remedial claims 

become quite difficult. . . . As our clients generally receive SSI and aren’t able to work, 
143

their lack of shelter cannot be said to interfere with their ability to receive normal wages. 

Many of our clients have not paid rent, as they live from person to person, in the street or 

in shelters. . . . Their harm has been extreme, yet their claims for compensatory damages 

are complex and uncertain. . . . When we still had a claim for punitive damages, we were 

convinced that the illegal action of the Authority could be punished and that the victims 

could expect some genuine relief. As significantly, the Authority would know in the 

future that they may not violate the law with impunity. Now, without the relief of punitive 

damages, government action can go for long periods of time and there is no true 

accountability for its wrongdoings. 

Correspondence from Lauren Young, legal director, Maryland Disability Law Center, to Sharon 

Masling, November 11, 2002, quoted in The Impact of the Supreme Court’s ADA Decisions on 

the Rights of Persons 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. 

117 42 U.S.C. 12113(b). 

118 42 U.S.C. 12111(3). 

119 29 C.F.R. 1630.2(r), 1630.15(b)(2). 

120 See NCD’s Promises to Keep: A Decade of Federal Enforcement of the Americans with 

Disabilities Act at 221-222 (2000); NCD’s Brief as Amicus Curiae in Support of Respondent in 

Chevron U.S.A. Inc. v. Echazabal (2002). 

121 29 C.F.R. 1630.2(r). 

122 Id. Because of the procedural manner in which the case came to the Supreme Court, the 

Echazabal Court also did not have occasion to determine whether Chevron could have made a 

reasonable accommodation that would have permitted Mr. Echazabal to keep his job in spite of 

the risk-to-self standard, 122 S.Ct. at 2048 n. 2. 

123 122 S.Ct. at 2050 n. 3. 

124 Id. at 2053 and n. 6; 42 U.S.C. 12112(b)(6). 

125 See 29 C.F.R. pt. 1630. app. (commentary on 1630.15(b) and (c)) (“With regard to safety 

requirements that screen out or tend to screen out an individual with a disability or a class of 

individuals with disabilities, an employer must demonstrate that the requirement, as applied to 

the individual, satisfies the ‘direct-threat’ standard in section 1630.2(r) in order to show that the 

requirement is job related and consistent with business necessity”) (emphasis added), quoted in 

Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758, 764 (5th Cir. 1996). 

126 See, e.g., Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 893 (9th Cir. 2001) 

(“Because it is an affirmative defense, the employer bears the burden of proving that an employee 

constitutes a direct threat.”); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) 
144

(“Because this is an affirmative defense Wal-Mart bears the burden of proving that Nunes is a 

direct threat.”); Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758, 764 (5th Cir. 

1996) (“As with all affirmative defenses, the employer bears the burden of proving that the 

employee is a direct threat.”). 

127 Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002). 

128 297 F.3d at 725, n. 5. 

129 Id.

130 Nanette v. Department of the Treasury, 92 M.S.P.R. 127, M.S.P.B. (August 7, 2002). 

131 Id. at 138. 

132 Id. at 140-41. 

133 Watson v. Hughston Sports Medicine Hospital, 231 F. Supp.2d 1344 (M.D.Ga. 2002). 

134 Id. at 1352-53. 

135 42 U.S.C. 12111(10). 

136 122 S.Ct. at 1523. 

137 Id. at 1522. 

138 29 C.F.R. pt. 1630 app. (commentary on 1630.9). 

139 See, e.g., Shapiro v. Township of Lakewood, 292 F.3d 356, 359 (3d Cir. 2002); Mengine v. 

Runyon, 114 F.3d 415, 420 (3d Cir. 1997); Templeton v. Neodata Services, Inc., 162 F.3d 617, 

619 (10th Cir. 1998); Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th 

Cir. 1996); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 951-54 (8th Cir. 1999); 

Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002); Taylor v. 

Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996); Smith v. Midland Brake, Inc., 

180 F.3d 1154, 1171-72 (10th Cir. 1999) (en banc). 

140 29 C.F.R. 1630.2(o). 

141 42 U.S.C. 12111(10). 

142 “Undue hardship” was the topic of considerable debate. See, e.g., 135 Cong. Rec. S10735, 

S10736 (daily ed. September 7, 1989) (Statements of Senators Hatch and Harkin); 135 Cong. 

Rec. S10773 (daily ed. September 7, 1989) (Statement of Senators Helms and Harkin); 136 

Cong. Rec. H2429 (daily ed. May 17, 1990) (Statement of Representative Bartlett); and 136 
145

Cong. Rec. H2471-H2475 (daily ed. May 17, 1990) (debate on Representative Olin amendment 

to put a cap on undue hardship). 

143 122 S.Ct. at 1521. 

144 Id. at 1522-23. 

145 122 S.Ct. at 1521. The Court explained that it was using the term “preference” narrowly in 

referring to some reasonable accommodations, “in the sense that they would permit the worker 

with a disability to violate a rule that others must obey.” Id.

146 Id. at 1521. 

147 Id. at 1523. 

148 In Barnett, the majority decision emphasized “the importance of seniority to employeemanagement relations” and the benefits of “creating, and fulfilling, employee expectations of 

fair, uniform treatment.” 122 S.Ct. at 1524. 

149 Shapiro v. Township of Lakewood, 292 F.3d 356 (3d Cir. 2002). 

150 Barnett, 122 S.Ct. at 1525. 

151 292 F.3d 360-61. 

152 301 F.3d 866 (7th Cir. 2002). 

153 Id. at 872. 

154 Id. 

155 Id.

156 In Oconomowoc Residential Programs, Inc., v. City of Milwaukee, 2002 WL 1811325, at 

7 (7th Cir. 2002), a case brought under ADA Title II and the Fair Housing Amendments Act, the 

Seventh Circuit showed itself even willing to apply the Barnett analysis totally outside of the 

employment context. It cited the Barnett decision to support the application of a reasonableness 

standard––separate from the undue burden/undue hardship limitations––to “reasonable 

modifications” and “reasonable accommodations” requirements under Title II and the Fair 

Housing Amendments Act, in a case involving a challenge to a zoning decision. 

157 Vande Zande v. State of Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 

1995). 

158 Id. at 542. 
146

159 Id. at 542-43. 

160 Id. at 546. 

161 Id. at 544-45. 

162 In March 1999, the EEOC issued Enforcement Guidance on Reasonable Accommodation and 

Undue Hardship, which recognized working at home as an appropriate accommodation in the 

right circumstances.

163 122 S.Ct. at 1519. 

164 See, e.g., Davis v. Florida Power and Light Co., 205 F.3d 1301, 1307 (11th Cir. 2000); 

Feliciano v. Rhode Island, 160 F.3d 780, 787 (1st Cir. 1998); Cassidy v. Detroit Edison Co., 138 

F.3d 629, 634 (6th Cir. 1998); Kralik v. Durbin, 130 F.3d 76, 81-83 (3d Cir. 1997); Foreman v. 

Babcock and Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997); Eckles v. Consolidated Rail 

Corporation, 94 F.3d 1041, 1051 (7th Cir. 1996); Benson v. Northwest Airlines, Inc., 62 F.3d 

1108, 1114 (8th Cir. 1995); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995). 

165 NCD, Promises to Keep: A Decade of Federal Enforcement of the Americans with 

Disabilities Act 226-27 (2000). 

166 45 C.F.R. 84.11(c) (“a recipient’s obligation to comply with this subpart [employment] is not 

affected by any inconsistent term of any collective bargaining agreement”). 

167 122 S.Ct. at 1523-24. 

168 Id. at 1525. 

169 42 U.S.C. 12111(9)(B). 

170 122 S.Ct. at 1521. 

171 Dilley v. SuperValu, Inc., 296 F.3d 958 (10th Cir. 2002).

172 Id. at 963. 

173 Id.

174 EEOC v. Dillon Companies, Inc., 2002 WL 31516342 (10th Cir. 2002). 

175 Id. at *5. 

176 Id.

177 Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc). 
147

178 Id. at 1304. 

179 Id. at 1305 (n. 29). 

180 122 S.Ct. at 1523-24. 

181 See, e.g., Vikram David Amar and Alan Brownstein, Reasonable Accommodations Under 

the ADA, 5 Greenbag 2d 361 (2002). Discussing Barnett, the authors make the following 

observation: 

Don’t seniority rules “bear more heavily” on disabled workers because such 

workers have shorter work histories with particular employers, in part due to an 

historical (and economically rational) pre-ADA unwillingness by employers to 

modify workplace rules to accommodate the physical needs of the disabled? 

Don’t disabilities alter a person’s vocational path and make longevity at any one 

employer less likely? Robert Barnett may be the exception—he became disabled 

after he was employed and remained (or rather tried to remain) with his existing 

employer. But don’t seniority rules more generally hurt disabled persons more 

than others and thereby pose “distinctive” problems for the disabled? 

Id. at 366. 

182 122 S.Ct. at 1524. 

183 The paper was developed for NCD by Claudia Center and Andrew J. Imparato, who published 

a later version of the paper in the Stanford Law and Policy Review. See Claudia Center and 

Andrew J. Imparato, Redefining “Disability” Discrimination: A Proposal to Restore Civil Rights 

Protections for All Workers, 14 Stanford Law and Policy Review 321 (2003) (Symposium: 

Developments in Disability Rights). 

184 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448, 450 (1985) (“negative 

attitudes,” “fear,” and “irrational prejudice”); School Board of Nassau County v. Arline, 480 

U.S. 273, 283-284 (1987) (disability nondiscrimination legislation motivated by congressional 

desire to condemn effects of “negative reactions,” “prejudiced attitudes,” “ignorance,” “myths 

and fears,” “public fear and misapprehension,” and “irrational fear”). 

185 The individual must request an accommodation unless the covered entity already knows 

about the disability and knows that a limitation resulting from the disability is preventing or 

limiting the individual from equal enjoyment of employment opportunities or benefits. Most 

emphatically, an employer is required to consider a reasonable accommodation before subjecting 

an employee with a disability to an adverse employment action that is premised on a limitation 

arising from the employee’s disability. 

186 Bills titled the “Settlement Encouragement and Fairness Act” were introduced in the 107th 

Congress (S. 3161) in November 2002, and in the current 108th Congress (S. 1117) in May 2003. 
148

These bills focused solely on undoing the Buckhannon Court’s rejection of the “catalyst theory.” 

Subsequently, in February 2004, the substantive provisions of the Settlement Encouragement and 

Fairness Act bills were incorporated into a comprehensive civil rights bill addressing a variety 

of issues under federal civil rights laws. These bills, S. 2088 in the Senate and H.R. 3809 in the 

House of Representatives, are titled the “Fairness and Individual Rights Necessary to Ensure a 

Stronger Society: Civil Rights Act of 2004,” and the proposed law is known popularly as the 

“FAIRNESS Act.” The provision addressing the Buckhannon ruling (Section 502 of the 

FAIRNESS Act) would add a new section to Chapter 1 of Title 1 of the United States Code––

governing basic legal remedies––to provide as follows: 

Sec. 9. Definition of “prevailing party”

(a) In determining the meaning of any Act of Congress, or of any ruling, 

regulation, or interpretation of the various administrative bureaus and agencies 

of the United States, or of any judicial or administrative rule, which provides 

for the recovery of attorney’s fees, 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. 

(b)(1) If an Act, ruling, regulation, interpretation, or rule described in subsection 

(a) requires a defendant, but not a plaintiff, to satisfy certain different or additional 

criteria to qualify for the recovery of attorney’s fees, subsection (a) shall not affect 

the requirement that such defendant satisfy such criteria. 

(2) If an Act, ruling, regulation, interpretation, or rule described in subsection (a) 

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 (a) shall 

not affect the requirement that such party satisfy such criteria. 

The FAIRNESS Act also addresses the outcome of the Barnes decision by restoring, to some 

extent, the availability to private complainants of punitive damages under Title VI of the Civil 

Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act 

of 1975, and Section 504 of the Rehabilitation Act of 1973. The FAIRNESS Act does not 

directly address remedies under the ADA, but presumably would restore them indirectly, because 

Section 203 of the ADA makes Section 504 remedies available under Title II of the ADA. 

Section 104(d) of the FAIRNESS Act would add a new subsection at the end of Section 504 to 

provide as follows: 
149

(e)(1) 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 this section against 

an entity subject to this section who has engaged in unlawful intentional discrimination 

(not a practice that is unlawful because of its disparate impact) prohibited under this 

section (including its implementing regulations), the aggrieved person may recover 

equitable and legal relief (including compensatory and punitive damages), attorney’s fees 

(including expert fees), and costs, except that punitive damages are not available against a 

government, government agency, or political subdivision. 

(2) In an action brought by an ‘aggrieved person’ under this section against a covered 

entity who has engaged in unlawful discrimination based on disparate impact prohibited 

under this section (including its implementing regulations), the aggrieved party may 

recover equitable relief, attorney’s fees (including expert fees), and costs. 

The subsection (e)(1) exception providing that punitive damages are not available against a 

government, government agency, or political subdivision makes applicable to Section 504 (and, 

through other provisions of the FAIRNESS Act proposal, to Title VI of the Civil Rights Act of 

1964, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975) 

a limitation on punitive damages that Congress expressly had made applicable only to Title VII 

of the Civil Rights Act and Title I of the ADA in the Civil Rights Act of 1991. Before the Barnes

decision, this limitation was not applicable to either Title II of the ADA nor to Section 504, and 

NCD does not endorse the expansion of this limitation to those provisions. Indeed, recognizing 

this exception would, in effect, codify rather than remedy the Barnes ruling, because a jury had 

awarded Mr. Gorman punitive damages in his suit against the Kansas City Board of Police 

Commissioners, the chief of police, and a particular police officer, and this award ultimately was 

invalidated by the Supreme Court. Moreover, recognition of this exception appears inconsistent 

with a later provision of the FAIRNESS Act (Section 105), which provides that “Nothing in this 

subtitle, including any amendment made by this subtitle, shall be construed to limit the scope of, 

or the relief available under, Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the 

ADA of 1990 (42 U.S.C. 12101 et seq.), or any other provision of law.” Accordingly, NCD has 

decided not to include the exception in its legislative proposal. 

A further refinement of the FAIRNESS Act approach in its application to discrimination on the 

basis of disability would be to make it clear that substantial ongoing failure by an entity subject 

to Section 504 or of the ADA to comply with certain nondiscrimination requirements should be 

treated as constituting intentional discrimination for purposes of availability of punitive damages. 

This would address situations in which a covered entity willfully, unlawfully, materially, and 

substantially does any of the following: (1) fails to meet program accessibility requirements for 

existing facilities, and facility accessibility requirements, including the ADA Accessibility 

Guidelines standards, for new construction and alterations; (2) fails to furnish appropriate 

auxiliary aids and services; (3) fails to ensure effective communication access; or (4) imposes 

discriminatory eligibility criteria or employment qualification standards that engender a blanket 

exclusion of individuals with a particular disability or category of disability. 
150

187 One of the findings (no. 14) of the FAIRNESS Act bill recites the fact that, unlike some other 

federal civil rights laws, Section 504 statutorily prohibits practices that involve disparate impact 

discrimination. It observes that in Alexander v. Choate, 469 U.S. 287 (1985), the Supreme Court 

“proceeded on the assumption that the statute itself prohibited some actions that had a disparate 

impact on handicapped individuals––an assumption borne out by congressional statements made 

during passage of the Act.” The finding goes on to add, 

In Sandoval, the Court appeared to accept this principle of Alexander. Moreover, the 

Supreme Court explicitly recognized congressional approval of the regulations 

promulgated to implement Section 504 of the Rehabilitation Act of 1973 in Consolidated 

Rail Corporation v. Darrone, 465 U.S. 624, 634 (1984). Relying on the validity of the 

regulations, Congress incorporated the regulations into the statutory requirements of 

Section 204 of the ADA of 1990 (42 U.S.C. 12134). Thus, it does not appear at this time 

that there is a risk that the private right of action to challenge disparate impact 

discrimination under section 504 of the Rehabilitation Act of 1973 will become 

unavailable. 

Accordingly, the FAIRNESS Act does not seek to restore such a private right of action for 

Section 504 or for the ADA. 

In Alexander v. Choate, the Supreme Court also observed that members of Congress made 

numerous statements during the consideration and passage of Section 504 regarding the 

importance of eliminating architectural barriers and providing access to transportation. The Court 

then stated, “These statements would ring hollow if the resulting legislation could not rectify the 

harms resulting from action that discriminated by effect as well as by design.” 469 U.S. at 297. 

Substantial ongoing noncompliance with accessibility requirements definitely and foreseeably 

will exclude individuals with disabilities and should be treated as a form of deliberate 

discrimination justifying the award of punitive damages provided the other prerequisites for such 

damages are met. The same rationale supports availability of punitive damages in situations in 

which a covered entity willfully fails to furnish appropriate auxiliary aids and services or to 

ensure effective communication access; or persists in applying eligibility or qualification criteria 

that involve a blanket exclusion of individuals with a particular disability or type of disability. 

188 Echazabal, 122 S.Ct. at 2053 and n. 6.; 42 U.S.C. 12112(b)(6); 29 C.F.R. pt. 1630. app. 

(commentary on 1630.15(b) and (c)) (“With regard to safety requirements that screen out or tend 

to screen out an individual with a disability or a class of individuals with disabilities, an 

employer must demonstrate that the requirement, as applied to the individual, satisfies the 

‘direct-threat’ standard in section 1630.2(r) to show that the requirement is job related and 

consistent with business necessity.”) (emphasis added). 

189 29 C.F.R. 1630.2(r). 
151

190 Id. Because of the procedural manner in which the case came to the Supreme Court, the 

Echazabal Court also did not have occasion to determine whether Chevron could have made a 

reasonable accommodation that would have permitted Mr. Echazabal to keep his job in spite of 

the risk-to-self standard, 122 S.Ct. at 2048 n. 2. 

191 See, e.g., Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 893 (9th Cir. 2001) 

(“Because it is an affirmative defense, the employer bears the burden of proving that an employee 

constitutes a direct threat.”); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) 

(“Because this is an affirmative defense Wal-Mart bears the burden of proving that Nunes is a 

direct threat.”); Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758, 764 (5th Cir. 

1996) (“As with all affirmative defenses, the employer bears the burden of proving that the 

employee is a direct threat.”). 

192 29 C.F.R. 1630.2(o)(1). 

193 See H.R. Rep. No. 101-485, pt. 2, p. 63 (1990), 1990 U.S.C. Cong. & Admin. News 303, 

345 (existence of collectively bargained protections for seniority “would not be determinative” 

on the issue whether an accommodation was reasonable); S. Rep. No. 101-116, p. 32 (1989) 

(a collective bargaining agreement assigning jobs based on seniority “may be considered as 

a factor in determining” whether an accommodation is reasonable). 

194 29 C.F.R. pt. 1630, app. (commentary on 1630.15(d). 

195 Regarding the important role of organized labor in implementing the ADA, see, e.g., Guy 

Stubblefield, “Organized Labor’s Role in Implementing the ADA,” in Implementing the 

Americans with Disabilities Act: Rights and Responsibilities of All Americans 81B85 (Lawrence 

O. Gostin and Henry A. Beyer eds., 1993); Mary Dryvoyage, “Compliance and Litigation 

Resources for Implementing the Americans with Disabilities Act of 1990,” 14 Berkeley J. Empl. 

& Lab. L. 318, 326B27 (1993); Loren K. Allison and Eric H.J. Stahlhut, “A Reasoned Approach 

to Harmonizing the ADA and the NLRA,” Lab. L. J. 292B97 (May 1994). 

196 See 42 U.S.C. 2000e-2(h) (1994 ed.) (“Notwithstanding any other provision of this 

subchapter, it shall not be an unlawful employment practice for an employer to [provide different 

benefits to employees] pursuant to a bona fide seniority ... system ....”); 29 U.S.C. 623(f) (1994 

ed.) (“It shall not be unlawful for an employer ... to take any action otherwise prohibited [under 

previous sections] ... to observe the terms of a bona fide seniority system [except for involuntary 

retirement] ...”). 

197 Eckles v. Consolidated Rail Corporation, 94 F.3d 1041 (7th Cir. 1996). 

198 NCD, Promises to Keep: A Decade of Federal Enforcement of the Americans with 

Disabilities Act 226-27 (2000). 

199 45 C.F.R. 84.11(c) (“a recipient’s obligation to comply with this subpart [employment] is not 

affected by any inconsistent term of any collective bargaining agreement”). 
152

200 42 U.S.C. 12201(a). 

201 See, e.g., 136 Cong. Rec. S9684 (daily ed. July 13, 1990) (remarks of Senator McCain) (“The 

ADA is a final proclamation that the disabled will never again be excluded, never again treated 

by law as second-class citizens.”); 136 Cong. Rec. H2622 (daily ed. May 22, 1990) (remarks of 

Representative Hoyer) (“Let us not say ... that the disability community remains in a second-class 

status in America. That is not what this bill is all about.”); 135 Cong. Rec. S10717 (daily ed. 

September 7, 1989) (remarks of Senator Kennedy) (“For years, ... we have tolerated a status of 

second-class citizenship for our disabled fellow citizens.”); S. Rep. No. 101-116, at 16 (1989) 

(quoting testimony of Judith Heumann) (“This forced acceptance of second-class citizenship has 

stripped us as disabled people of pride and dignity.”); H.R. Rep. No. 101-485, pt. 2 at 42 (1990) 

(Committee on Education and Labor) (same). 

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