The Mythic 43 Million Americans with Disabilities

ABSTRACT Although Congress stated in its first statutory finding that it intended the Americans with Disabilities Act (ADA) to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, this Article demonstrates through the use of Census Bureau data that the ADA's employment discrimination provisions have been eviscerated to the point that the ADA protects virtually no Americans who are both disabled and able to work. This Article places that problem in the larger context of the Court undermining Congress's efforts to protect discrete and insular minorities from employment discrimination. Although Congress has sometimes responded to that hostility by enacting "restoration legislation," this Article argues that such restoration efforts should be unnecessary. The Court should correct its errors and engage in a respectful relationship with Congress so that Congress can move on to new items on its legislative agenda rather than revisit prior items. INTRODUCTION I. ONCE SHOULD BE ENOUGH A. Congress's Reconstruction Efforts B. Resurrection of the Civil Rights Canon 1. The Rise and the Demise of the Civil Rights Canon 2. Particular Applicability of the Civil Rights Canon to the ADA II. DERIVATION OF THE 43 MILLION FIGURE A. Social Security Laws B. The 43 Million Figure III. SUPREME COURT CASES DEFINING "DISABILITY" UNDER SUBSECTION (A) A. Sutton v. United Air Lines, Inc B. Albertson's, Inc. v. Kirkingburg C. Murphy v. United Parcel Service D. The Statistical Significance Solution IV. REGARDED AS DISABLED A. Sutton & Murphy B. Post-Sutton Case Law C. Further Retrenchment: Toyota Decision CONCLUSION INTRODUCTION In recent years, the Supreme Court has narrowly interpreted the scope of protection (1) provided under federal civil rights law while also increasingly disavowing the usefulness of legislative history to interpret these statutes. (2) Left only with the legislative text, the Court has imposed an interpretation on these statutes that can only be described as "dissing Congress," (3) because it flouts both the statutory language and congressional intent as reflected in the legislative history. Hence, the civil rights community has had to persuade Congress to enact key civil rights legislation twice--first as a pathbreaking statute, and then again as a "restoration act" (4)--to attain the intended scope of statutory protection. (5) The Americans with Disabilities Act (ADA) (6) has been a victim of this problem. When Congress enacted the ADA in 1990, it adopted an "anti-subordination" model (7) under which it protected a class of individuals it concluded had faced a history of discrimination. (8) The statute provided that only those who met the definition of "disability" (9) attained protection, that reasonable accommodations would be available to such individuals, (10) and that "reverse" discrimination lawsuits would not be permitted. (11) This approach stood in contrast to an anti-differentiation approach, under which anyone in society would have a cause of action if she demonstrated different treatment on the basis of a physical or mental condition irrespective of whether that condition fit her within a category of people who had historically faced discrimination. (12) In addition, Congress carefully structured the ADA around three titles that would address the major areas in which a history of disability discrimination existed: the workplace, (13) the public sector, (14) and accommodations open to the public. (15) Its statutory findings paralleled this approach by indicating that a history of discrimination existed "in such critical areas as employment, housing, [and] public accommodations." (16) By listing "employment" first in its description of "critical areas," and by addressing the problem of employment discrimination in the first title of the ADA, Congress clearly marked redressing employment discrimination as one of its top priorities. …