The Disabled ADA: How a Narrowing ADA Threatens to Exclude the Cognitively Disabled

By Catchpole, Nathan; Miller, Aaron | Brigham Young University Law Review, September 1, 2006 | Go to article overview

The Disabled ADA: How a Narrowing ADA Threatens to Exclude the Cognitively Disabled


Catchpole, Nathan, Miller, Aaron, Brigham Young University Law Review


I. INTRODUCTION

Congress, in the Americans with Disabilities Act of 1990(1) (ADA), found that upwards of forty-three million Americans have one or more physical or mental disabilities.2 More current United States Census Bureau estimates put that number at 49.7 million.3 Included among those disabled are 12.4 million cognitively disabled Americans who suffer from conditions that impair their ability to learn, remember, or concentrate.4 This Comment contends that, because courts have narrowly interpreted the ADA's coverage provisions since its enactment, these 12.4 million cognitively disabled Americans are perilously close to being altogether denied ADA protection-a result that, notwithstanding the ADA's awkward coverage provisions, Congress never intended.

Congress found that the disabled persistently "encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities."5 In the face of these and other distressing facts regarding the plight of disabled Americans,6 Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."7 The ADA guarantees "broad antidiscrimination protection for disabled individuals-defined as those having physical or mental impairments that substantially limit one or more major life activities."8 Such broad protection for a historically ignored class of persons positions the ADA, arguably, as "the most significant civil rights legislation since the mid-1960s."9 Or at least it should be.

If the ADA is something less than the most significant civil rights legislation since the mid-1960s, it is largely due to the phenomenon of what has been called "the incredible shrinking protected class."10 This phrase aptly describes the evolution of the ADA's coverage since its enactment. Courts, in their apparent zeal to define a manageable protected class, have restrictively interpreted the ADA's broad, but often ambiguous, terms to the extent that they "have effectively steered the analytical focus away from the ADA's original aim of aiding disadvantaged individuals' integration into the job market . . . to the point where [the ADA] is in danger of becoming ineffective."11

This Comment contends that the day of ADA ineffectiveness may have come for the cognitively disabled, surreptitiously ushered in through decisions such as Button v. United Air Lines, Inc.12 and Toyota Motor Manufacturing v. Williams.13 These decisions, by narrowly defining who qualifies as "disabled," exemplify courts' unarticulated, but noticeable, inclination to restrictively interpret the ADA. This inclination portends serious consequences for the cognitively disabled, who are at once able to perform employment tasks but sufficiently disabled to be at a performance disadvantage in their employment.14 As will be later discussed, this status as the "too-able disabled" makes it difficult for the cognitively disabled to fit within the ADA's nearly unworkable coverage zone, a fit made even more difficult by restrictive judicial interpretations.15 Indeed, the result of these restrictive interpretations could be to deprive the cognitively disabled, who have courageously taken steps to mitigate the limiting effects of their disability, of both reasonable accommodation in the workplace and legal recourse under the ADA should they be terminated because of their disability.16 This is a result Congress never intended.17

Part II of this Comment reviews the plain language, interpretive regulations, and legislative history of the ADA in order to establish the intended bounds of its coverage. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Disabled ADA: How a Narrowing ADA Threatens to Exclude the Cognitively Disabled
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.