Explaining “Not Disabled” Cases Ten Years After the ADAAA: A Story of Ignorance, Incompetence, and Possibly Animus
Written By: Nicole Buonocore Porter
The Americans with Disabilities Act (ADA) was passed in 1990 with broad bipartisan support. It was not long, however, before courts began giving the definition of disability under the ADA a very narrow interpretation. Conditions such as “diabetes, cancer, AIDS, bipolar disorder, multiple sclerosis, monocular vision, epilepsy, cerebral palsy,” and many others were found not to be disabilities under the ADA. Even when there was compelling evidence that the employer had taken an adverse action against the employee because of the impairment, courts would dismiss their ADA claims because they did not fall into the narrow definition of disability as interpreted by the courts. This led to an entire body of scholarship claiming that there was a “backlash” against the ADA.
This backlash is especially troubling when one considers that individuals with disabilities are disproportionately living in poverty, and are employed at a much lower rate than non-disabled individuals. Thus, because individuals with disabilities already experience significant disadvantages, the difficulty in bringing a claim when they are discriminated against by their employers makes this “backlash” against individuals with disabilities even more pernicious.
Congress was unhappy with the backlash against the ADA, and therefore passed the ADA Amendments Act of 2008 (“ADAAA” or the “Amendments”) to broaden the class of individuals that would fall into the ADA’s protected class. As discussed in more detail below, Congress did not change the basic definition of disability—a physical or mental impairment that substantially limits one or more major life activities—but it did add several interpretive provisions so that courts would give the statute a broad, rather than miserly construction.
After the Amendments went into effect, several scholars predicted that many more individuals will be able to fall into the ADA’s protected class, and therefore will have the merits of their claims heard. I agreed with this prediction, and in 2013–14, I set out to explore how courts had been interpreting the definition of disability after the ADAAA. Specifically, I attempted to include every case decided under the Amendments until December 31, 2013. In that article, I concluded that “courts have taken Congress’s mandate to broadly define ‘disability’ seriously. Many of the courts specifically cite to the Amendments . . . .” I also found only a handful of cases that were, in my opinion, incorrectly decided.
As of this writing, it has been five years since that prior article, and ten years since Congress passed the ADAAA. While working on another project exploring ADA retaliation cases after the Amendments, I discovered several post-Amendments cases that held that the plaintiff did not have a disability under the ADA. Based on the impairments of most of these plaintiffs, I was surprised by the results. I collected them in a Westlaw folder, and eventually had accumulated about forty cases where the courts had (in my opinion) erroneously held that the plaintiff did not meet the definition of disability as broadly defined after the ADAAA. This was quite surprising given the conclusions I drew in my earlier article. Accordingly, I set out to explore this body of cases in a more systematic way.
Specifically, I set out to find and read every case that addressed the definition of disability from the point my last article left off until the present (January 1, 2014 through December 31, 2018). This resulted in 976 cases. Of those 976 cases, the court erroneously held that the plaintiff was not disabled in 210 of them. To be clear, I only included cases where I believed that the plaintiff should have been found to have a disability under the ADA, as amended. There were certainly cases where the plaintiff did not meet the definition of disability, but I believed they were correctly decided. I did not include those cases in my dataset.
This Article attempts to explain what went wrong—why did courts incorrectly hold that the plaintiff was not disabled in more than 200 cases? The answer, I’ve concluded, is a little bit of ignorance (courts and parties that were apparently unaware that the ADAAA was passed); a little bit of incompetence (plaintiffs who did not adequately plead their claims and did not use all of the interpretive tools available under the ADAAA); and possibly, a little bit of animus. I don’t make this last conclusion lightly. And it is admittedly hard to tell whether mistakes made by the courts are good faith but erroneous interpretations of the law, or whether the prior backlash against the ADA is rearing its head again.
This Article will proceed in three additional parts. Part II will provide a background of the ADA—from the first eighteen years of the ADA’s existence, to the passage and provisions of the ADAAA, and to a summary of cases interpreting the definition of disability in the first five years after the ADAAA was passed. Part III will discuss the various errors made by courts and parties. Finally, Part IV will briefly address the implications of this research and identify potential areas of future exploration.Subscribe to GJPLP