Americans with Disabilities Act: Past, Present, and Future Developments Florida ADA Conference August 2003

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Americans with Disabilities Act Past, Present,
and Future DevelopmentsFlorida ADA
ConferenceAugust 2003

• Professor Ruth Colker
• Michael E. Moritz College of Law
• The Ohio State University

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From Insensitivity to Endorsement
Look, Im not going to pick on an invalid. --
President Ronald Reagan, August 1988
The Americans with Disabilities Act presents us
all with an historic opportunity. It signals the
end to the unjustified segregation and exclusion
of persons with disabilities from the mainstream
of American life. -- President George H.W. Bush,
July 26, 1990
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Media Perspective
No politician can vote against this bill and
survive. -- New York Times, Sept. 6, 1989
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The Final Vote
Senator Kennedy ADA is an emancipation
proclamation for individuals with disabilities.
377 to 28 in House
Senator Orrin Hatch called the ADA the most
sweeping piece of civil rights legislation
possibly in the history of our country.
91 to 6 in Senate
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Text Broad Coverage
As ADA was considered in Congress, estimate of
number of individuals with disabilities was
raised from 36 million to 43 million. Attempts
to provide inadequate coverage for individuals
with HIV were thwarted. Critics complained about
ADAs broad coverage. Supporters never denied
that characterization.
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A Forgotten Minority
Business Week, Senator Dole, and Senator Harkin
on eve of passage of ADA Individuals with
disabilities are the last minority in need of
civil rights protection.
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Legislative History
The ADA is the last ditch attempt of the
remorseless sodomy lobby to achieve its national
agenda before the impending decimation of AIDS
destroys its political clout. Their Bill simply
must be stopped. There will be no second chance
for normal America if the ADA is passed.
-Representative Dan Burton (R. Indiana), October
1989
Minority report of the Senate Committee on Energy
and Commerce We believe that the ADA is a
homosexual rights bill in disguise.
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Homophobia Text

• Section 12211
• Definition of disability does not include
  homosexuals or bisexuals.
• Does not include those with sexual behavior
  disorders such as transvestites and transsexuals

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AIDS Hysteria Text
Defeated attempt to give food industry the right
to exclude individuals from employment because
they are HIV-positive.
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Media Backlash
New Republic The ADA has created a lifelong
buffet or perks, special breaks and procedural
protections for people with questionable
disabilities. -- April 25, 1997
Readers Digest Plaintiffs have used the ADA
to trigger an avalanche of frivolous suits
clogging federal courts. -- May 1998
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Judicial Backlash
The ADA is an example of what happens when a
bills sponsors are so eager to get something
passed that what passes hasnt been as carefully
written as a group of law professors might put
together. -- Justice Sandra Day OConnor, March
15, 2002
Justice OConnor author of Sutton decision (Why
is she smiling?)
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Enforcement Statistics
Somewhat likely to prevail if get to jury win
rate of 33.8
But likely to be thrown out on summary judgment
motion win rate of 8.8
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A One-Two PunchSutton and Garrett
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Sutton Aftermath

• Problems with cases involving
• Hearing aids
• Medication for conditions like epilepsy
• Medication for mental health disorders
• What are activities of daily living?
• Yes household chores, bathing, brushing ones
  teeth
• No sweeping, dancing, independent dressing,
  gardening, driving long distances

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Record of Prong

• Arline prior record of hospitalization
  sufficient
• Lower courts nonsensical to say any hospital
  stay is sufficient

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Regarded as prong

• Virtually no successful cases

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Garrett Aftermath

• Only 24 of 51 states provide clear statutory
  language with protection comparable to ADA Title
  II
• Hibbs decision under FMLA suggests Garrett
  holding will be extended to ADA Title II
  generally.

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Separation of Powers Critique

• Supreme Court is dissing Congress
• Says legislative history is irrelevant in Sutton
• Says Congress didnt create enough legislative
  history in Garrett
• But if Congress is going to take the attitude
  that it will do anything it can get away with and
  let the Supreme Court worry about the
  Constitution . . . then perhaps that presumption
  of constitutionality is unwarranted.
• Justice Scalia, April 18, 2000

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The Future?
Justice OConnor suggested that the pendulum
tends to swing back and forth. When will the
pendulum begin to swing back for individuals with
disabilities?