Supporters of the Americans with Disabilities Act (ADA) have been rightfully dismayed by the Supreme Court's drive to eviscerate the clear purpose of the statute: to protect people with disabilities with certain statutory rights against discrimination in public accommodation and employment. In a trio of cases handed down in 1999, the Court took an extreme position of what qualifies as a disability protected under the statute.

In particular, SUTTON v. UNITED AIR LINES (1999) was a perverse interpretation of the ADA. In SUTTON, United Airlines had a rule requiring global pilots to have an uncorrected vision of at least 20/40. Both Karen Sutton and her sister Kimberly Hinton were pilots for regional airlines. Sutton and Hinton both suffered from severe myopia, yet both had fully corrected vision with eyeglasses. Despite both women meeting federal vision standards, United rejected both women for global pilots because of its internal rule. Sutton and Hinton sued claiming relief under the ADA.

Justice O'Connor, writing for the 7-2 majority in SUTTON, found for the airline. O'Connor reasoned that since the impairment was fully mitigated by glasses, both Sutton and Hinton did not have a disability as defined by the ADA. According to O'Connor, United was therefore free to consider the condition of both Sutton and Hinton so long as their condition did not rise to the level of a disability. In other words, employees needed to show they were substantially impaired in order to receive any protection under the ADA-for without substantial impairment employers were free to discriminate against a person based upon physical or mental limitations.

Ruth O'Brien, in her new book CRIPPLED JUSTICE describes the impact of SUTTON as absurd. Her conclusion is that, "Emphasizing managerial prerogatives meant that O'Connor turned the ADA on its head. She gave employers the right to discriminate or, as she put it, the freedom to decide, against hiring people who had limiting impairments. Whether employers could discriminate or, conversely, be sued for discrimination all depended on how a federal court interpreted the word 'substantial'" (p. 195).

According to O'Brien, to reach such a determination, O'Connor and the majority in SUTTON needed to ignore not only the clear legislative history of the statute, but the administrative guidelines the Equal Employment Opportunity Commission had offered on the ADA. I think it fair to add that O'Connor also needed to introduce a twisted reading of the plain meaning of the statute to reach her result.

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The result of SUTTON, though appalling, was only the beginning. The High Court has worked progressively since 1999 to further limit the employment rights of disabled individuals under the ADA. Just this current term in TOYOTA MOTOR MANUFACTURING v. WILLIAMS (2002), the Supreme Court further limited the definition of a disability by requiring physical impairments to be extensive and persistent.

However, the goal of CRIPPLED JUSTICE is not just a mere diatribe against a Supreme Court run amuck. O'Brien seeks to place these decisions of the Supreme Court within the larger framework of federal policies on disability. In her book, she broadly asserts that federal judges and Court justices "turned themselves into gatekeepers ... concentrat[ing] on who deserves protection" rather than determining whether disabled individuals experienced discrimination" (p. 164).

Her overall thesis is that the Supreme Court and lower federal court's hostility to the claims of the disabled and disability advocates under the ADA has been a result of the application of the psychoanalytical rehabilitation model (pp. 164-65). Judges and justices, in her telling, have applied the APA to people demanding reasonable accommodations only to the most deserving "super crips" (p. 165). As the name implies, these are only the most overachieving, overcompensating individuals who are deemed worthy of coverage.

Employing an overly functional and individualized test for who is disabled, federal courts have parsed the wording of the ADA on what is required to have a disability and greatly limited those covered to only the most "deserving" cases of coverage. As O'Brien puts it:

"The federal courts have essentially stripped down the meaning of employment relations provisions to one based not upon rights but upon vulnerabilities and needs. People with disabilities must demonstrate that they have done all that can be done to mitigate their condition. If they cannot compensate for it ... then and only then will the federal court rule that they have a disability and allow them to proceed to trial" (p. 217).

O'Brien also explores the issue of managerial control. She claims that the courts have been remarkably reluctant to overturn traditional managerial prerogatives of employment conditions. Although the majority requiring an accommodation could be situated at no cost, with only a small fraction of disabled individuals requiring accommodations costing greater than $500, empirical evidence from a 1982 study suggests the vast majority of disabled employees required no accommodations whatsoever. Overall, disabled workers were found to be just as productive as non-disabled workers with no subsequent increases in workers' compensation costs (pp. 168-69).

Despite scant empirical support for managerial claims, federal courts have overwhelmingly sided with employers. According to research cited in O'Brien, 80 percent of all employment claims under the ADA have been decided for the employer on summary judgment. Of the surviving claims, 94 percent were ultimately decided for the employer defendant (p. 163). That means plaintiffs are winning slightly above one percent of all claims. Clearly something is up.

O'Brien proposes that something is the support of federal courts for employer

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control and power. Disabled employees challenge that power relationship by demanding reasonable accommodations as a matter of right rather than one based upon privilege or reward. According to O'Brien, judges and justices have greatly limited the rights of the disabled against employment discrimination under the ADA because "like many employers, they perceive disabled people as threatening. Title I gave people with disabilities the capacity to negotiate with their employers about work conditions and challenge the norms and values of this workplace" (p. 205).

Ultimately, O'Brien conjectures the federal court's treatment of disabled workers has eviscerated a rights oriented view of employment protections on the basis of a "Foucaldian state" (p. 220). Judges and justices protect the power relationship between employer and employee rather than subvert or challenge it.

I suggest that O'Brien spends too much of her time on reviewing ideas and history for the sake of completeness rather than focusing upon the points she is trying to present. O'Brien provides a great number of pages painstakingly detailing the history of disability policy in the United States. I'm sure the history is necessary, but certainly did not need to comprise two thirds of the book. For my taste, I think the book could have focused more tightly on the recent events of the ADA and the Court's recent cases concerning the ADA. Likewise, O'Brien could have detailed at much greater length the congruity between the Court's current pronouncements and the rehabilitation position of an earlier generation.

Ultimately, what I found most frustrating was the limited discussion of the power relationship between employer and employee. If indeed O'Brien were seeking to make a larger point about the Court's decisions and the treatment of disability rights within the larger framework of power, some elaboration of Foucault's discussion and its applicability here would have been appreciated. As it stands, I am left with a suggestion that is never fully elaborated much less fully supported.

I am not inclined to reject out of hand O'Brien's thesis, but I just don't feel like I have enough of a discussion to accept it either. I must admit, I was fascinated by the Introduction and began to think almost immediately on my own as to why a rights based approach to disability and employment has been so forcefully and malignantly rejected by the Court. Clearly there is a strong ideological bias against such an approach, but why?

Maybe there is a power relationship present, but I can't help but think that part of the problem is the current Supreme Court's very stilted conception of equality. Conservatives have eroded the more expansive notions of equality so that for all practical purposes non-discrimination for the disabled has come to mean the same thing as it has for racial and ethnic minorities: some equality of opportunity but no "special" treatment. Yet, the whole point of equality for disabled persons challenges that conception of limited equality. A disabled person is not going to be able to compete with an able-bodied person in all ways-that is the whole point of having a disability. Giving a disabled person the exact same job requirements as an abled body person may be equality of opportunity, but it is not equality.

What the disabled movement is

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asking and what the justices never seem to answer is why a disabled person SHOULD HAVE TO compete with able-bodied persons in every way. Is it enough that the disabled person can do the core parts of a job with or without reasonable accommodation?

People with disabilities challenge the current Court's notions of equality as much as of power. They demand to be treated as equal and this equality is not qualified by references to a disability. Certainly a demand that employers justify their job requirements would make conservative Supreme Court justices uncomfortable. However, I suspect, the reason for determined Supreme Court resistance to the ADA has been an unwillingness to assent to the challenge of a more facilitative definition of equality with regard to disability. If disabled persons were given protections against discrimination in fulfillment of the ADA's intent, the Supreme Court would have to acknowledge that equal treatment might imply something more than the superficial equal opportunity rhetoric it has been offering. The High Court
may then, for instance, also have a more difficult time blocking forms of racial affirmative action as unconstitutional.

I cannot help but agree with Ruth O'Brien on several points. First, she is absolutely correct that the Supreme Court's interpretation of the ADA has been disgraceful. I also concur that the rights of disabled persons as defined in the ADA challenge traditional hierarchies and are worthy of our attention. I further think she is absolutely right that there is something at work here that would cause the Court to create an absurd interpretation of the ADA that at best eviscerates the law. I am also grateful for O'Brien's interesting connection of this treatment with earlier theories of rehabilitation. At the end of the day, however, I'm still not sure what to
make of the fundamental riddle of why the Supreme Court has done this.

O'Brien's book is noteworthy for connecting or at least attempting to connect these themes together and I would warmly recommend it on those terms.

REFERENCES:

SUTTON v. UNITED AIR LINES, 527 U.S. 471 (1999).

TOYOTA MOTOR MANUFACTURING v. WILLIAMS, 122 S. Ct. 681 (2002).

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Copyright 2002 by the author, Rob Hennig.