How judicial myopia is jeopardizing the protection of people with HIV/AIDS under the ADA.

I. INTRODUCTION The Americans with Disabilities Act of 1990(1) promised to be a "second-- generation" civil rights statute, comparable in importance and scope to the Civil Rights Act of 1964.2 The breadth of the act reflected congressional and disability activists' desire to change society in order to enable the disabled to achieve economic autonomy and social equality.3 Historically, disabled individuals were characterized by their inability to normally function in society, either due to physical obstacles or social myths and stereotypes.4 Up until 1990, the federal government had taken baby steps to address these issues. Indeed, most federal activity was limited to assisting disabled people in overcoming physical barriers to employment. However, the government did little to change the structure of those barriers, and most certainly did not address the widespread social prejudice against the disabled.5 Section 504 of the Rehabilitation Act of 1973 was the first move in this direction by prohibiting entities that receive federal funds from discriminating "solely on the basis of handicap."6 The Congress and President Bush took a giant leap forward by enacting the ADA which prohibits discrimination against disabled persons by private employers,7 state and local governments,8 and private providers of public accommodations.9 The ADA then goes one step further by requiring these entities to change their environments and make "reasonable accommodations" for disabled people.10 By prohibiting discrimination and placing affirmative accommodation requirements on entities, the ADA reversed the historical approach of treating the disabled as needing rehabilitation and instead forced society to rehabilitate its physical structure and mental biases against the people with disabilities.11 Given that the ADA was not intended to solely address the ability of the disabled to work but also to function free of social prejudice,12 the act conceived of disability in a broad way. The ADA's definition of disability encompasses impairments which not only affect the individual's ability to work but also other important life activities.13 In fact, the ADA almost copied the definition of disability from the Rehabilitation Act specifically because courts had consistently interpreted it to include a large number of physical and mental conditions, including AIDS and HIV infection.14 Most courts did not engage in detailed textualist parsing of the statute, and instead significantly relied on legislative history, administrative interpretations and the principle that civil rights statutes should be interpreted broadly to achieve their purpose.15 However, with the passage of time and the rise of "new textualism,"16 the protection of many disabilities, including HIV/AIDS, is becoming less certain than originally intended or hoped for by the ADA architects. Significant public and judicial backlash has cast the ADA as imposing overly burdensome requirements on business and as a vehicle for many frivolous lawsuits.17 As a result, the ADA has begun to receive a more restrictive reading by the judiciary.18 Unfortunately, the Supreme Court has joined in this trend, as demonstrated in Sutton v. United,19 Murphy v. UPS20 and Albertsons, Inc. v. Kirkingburg,21 all decided at the end of the 1999 term In these cases, the Court held that plaintiffs' health conditions must be viewed in their mitigated state, meaning with the use of medication or medical devices, for determining whether they fall within the statutory definition of disability.22 These decisions contradict the long-established agency and judicial interpretation of the ADA as well as much of the ADA's legislative history.23 The Court's Sutton decisions24 have the potential to unsettle disability jurisprudence by now requiring plaintiffs to prove that they are disabled under the ADA in their medically treated state. Thus, treatable or controllable medical conditions formerly thought qualified for disability status may no longer qualify as ADA disabilities. …