If You Build It, Can They Sue? Architects' Liability Under Title III of the ADA

s.html>. 38. See Diller, supra note 36. 39. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness and Parenting Responsibilities under United States Law, 9 Yale J.L. & Feminism 213, 213 ("The backlash against the [ADA] ... has been immediate and strong. Exaggeration and misstatement have been rampant from the leaders of American capitalism."). 40. See id. at 251 ("[Conservative newspapers have fueled this backlash by exaggerating the scope of success for claimants under the ADA."). 41. See Diller, supra note 36 (arguing that "the courts do not fully grasp, let alone accept, the ADA's reliance on a civil rights model for addressing problems that people with disabilities face in the workplace"). Cases cited at the Berkeley symposium as examples of a "backlash" against the ADA typically involve seemingly valid claims that are nonetheless dismissed on technicalities, often by a finding that the plaintiff does not qualify as disabled under the ADA. See, e.g., Ellison v. Software Spectrum, Inc., 85 F.3d 187, 193 (5th Cir. 1996) (holding that a woman with breast cancer who suffered side effects from chemotherapy was not disabled under the ADA because she continued to work despite her impairments); Schulter v. Industrial Coils, Inc., 928 F. Supp. 1437, 1444 (W.D. Wis. 1996) (holding that an insulin-dependant diabetic was not disabled under the ADA because medication controlled or lessened the impairment to the point the diabetes no longer restricted a major life activity). 42. See Parmet, supra note 30 (discussing the increasing influence of textualism as a method of statutory interpretation in federal courts). 43. Wendy E. Parmet, Abstract, Plain Meaning and Mitigating Measures: Judicial Interpretations of the Meaning of Disability (visited June 11, 1999) . 44. See Sutton v. United Air Lines, Inc., 119 S. Ct. 2139,2150 (1999) (holding that two pilots with severe myopia were not "disabled" under the ADA because their corrective lenses removed the disability). The Court made a similar ruling the same (Vol. 68 1999] ARCHITECTS' LIABILITY UNDER THE ADA 143 In Sutton v. United Air Lines, Inc.,45 the defendant airline declared two myopic sisters unqualified to serve as commercial airline pilots.! With corrective lenses, their vision functioned identically to individuals without visual impairments.47 Focusing on the precise wording of ADA provisions, the majority found that the petitioners were not "disabled" within the meaning of the ADA.' in part due to the grammatical construction of the Act's definition of disability as an "impairment that substantially limits one or more of the major life activities. ' 49 Because the phrase is in the "present indicative '", verb tense, the majority held that while an individual who uses corrective lenses is impaired, that impairment does not presently substantially limit a major life activity.5' The majority explicitly refused to consider the legislative history of the ADA, which, the dissent pointed out, is "replete with references to the understanding that the Act's protected class includes individuals with various medical conditions that ordinarily are perfectly 'correctable' with medication or treatment. '5 In Sutton, the Court addressed the issue of disability itself, rather than who is liable under the Act for violations in building design. Nonetheless, its hypertextual interpretations of the ADA's language are further examples of the judicial trend toward "plain-meaning" construction that often goes so far as to contradict Congress's plainlystated intent. Similarly narrow "backlash" interpretations do address liability for discrimination in designing or constructing non-compliant privately owned commercial facilities.5s The next part outlines the day in Murphy v. United Parcel Service Inc, 119 S. Ct. 2133, 2137 (1999) (holding that a mechanic with high blood pressure was not disabled under the ADA because his medication remedied the disability). 45. 119 S. Ct. 2139. 46. See id. at 2143. 47. See id. at 2150. 48. See id. 49. ADA § 3(2)(A) (emphasis added) (codified at 42 U.S.C. § 12102(2)(A) (1994)). 50. Sutton, 119 S. Ct. at 2146. 51. See id. at 2146-47. 52. See id. at 2146 ("Because we decide that, by its terms, the ADA cannot be read in this manner, we have no reason to consider the ADA's legislative history."); see also infra text accompanying notes 203-05 (criticizing the Court for ignoring congressional intent in Sutton). 53. Id. at 2155 (Stevens, J., dissenting); see also, eg., H.R. Rep. No. 101-485, pt. H, at 52 (1990) ("Whether a person has a disability should be assessed without regard to the availability of mitigating measures such as reasonable accommodations or auxiliary aids."), reprinted in 1990 U.S.C.C.A.N. 303, 334; H.R. Rep. No. 101-485, pt. III, at 28 (1990) (stating that in determining whether an impairment substantially limits a major life activity, "[tihe impairment should be assessed without considering whether mitigating measures, such as auxiliary aids or reasonable accommodations, would result in a less-than-substantial limitation"), reprinted in 1990 U.S.C.C.A.N. 445, 451; S. Rep. No. 101-116, at 23 (1989) ("[W]hether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids."). 54. See infra Part HI.B-C.