Corrective Justice and Title I of the ADA Sharona Hoffman [email protected]

American University Law Review Volume 52 | Issue 5 Article 2 2003 Corrective Justice and Title I of the ADA Sharona Hoffman [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Law Commons Recommended Citation Hoffman, Sharona. "Corrective Justice and Title I of the ADA." American University Law Review 52, no.3 (2003): 1213-1289. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Corrective Justice and Title I of the ADA This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol52/iss5/2 HOFFMAN.AUTHORCHANGES2.DOC 10/28/2003 2:10 PM CORRECTIVE JUSTICE AND TITLE I OF THE ADA * SHARONA HOFFMAN TABLE OF CONTENTS Introduction.......................................................................................1215 I. Title I of the ADA: Its Goals and its Protected Class.............1219 A. The Statutory Goals: Participatory Justice, Distributive Justice, and Corrective Justice..........................................1219 B. The Definition of “Disability” Under the ADA, Federal Regulations, and Judicial Interpretation.........................1222 C. Concerns Raised by the Definition of the Term “Disability..........................................................................1226 1. The vagueness of the terminology .............................1226 2. Individualized assessment of the plaintiff’s level of functioning..................................................................1230 3. Cost concerns..............................................................1232 D. The ADA Deviates from the Traditional Civil Rights Model of Protecting a Discrete and Insular Minority.....1235 II. Empirical and Other Evidence Concerning the ADA’s Efficacy.....................................................................................1240 A. Employment Rates of Individuals with Disabilities.........1241 B. Monetary Relief and Other Statutory Benefits ...............1244 1. Data gaps: settlements, informal resolutions, and state court actions .......................................................1244 2. EEOC charge processing......................................... 1247 * Associate Professor of Law, Case Western Reserve University School of Law; LL.M. in Health Law, University of Houston; J.D., Harvard Law School; B.A., Wellesley College. Professor Hoffman served for six years as a Senior Trial Attorney in the Houston District Office of the Equal Employment Opportunity Commission. I wish to thank Jessica Berg, Peter Gerhart, Michael Heise, Lew Katz, Bob Lawry, Edward Lawry, Jacqueline Lipton, Max Mehlman, Andrew Morriss, Dale Nance, and Anita Silvers for comments on earlier drafts of this article. In addition, I am grateful to Kathryn Kerka and Lisa Durkee for their able research assistance. Early formulations of some of the ideas in this Article were presented at a National Endowment for Humanities (NEH) summer seminar entitled JUSTICE, EQUALITY, AND THE CHALLENGE OF DISABILITY. The Article benefited from the comments of my seminar colleagues, and I am grateful to the NEH for the funding that enabled me to attend the program. 1213 HOFFMAN.AUTHORCHANGES2.DOC 10/28/2003 2:10 PM 1214 AMERICAN UNIVERSITY LAW REVIEW [Vol. 52:1213 C. What Is Known and What Is Not Known.........................1250 II. Amending the ADA: Options, Recommendations, and Analysis.....................................................................................1251 A. The Recommendation: Redefining Individuals with Disabilities As Those with Mental or Physical Impairments that Have Been Subjected to A Pattern of Discrimination and Developing Specific Categories of Covered Impairments.......................................................1251 1. The general principle.................................................1251 2. The mechanics: determining disability status under the proposed standard.....................................1252 3. Achieving corrective justice and other justifications for the proposed standard..........................................1258 4. Effect on the existing protected class ........................1263 5. Cost savings and judicial sympathy .......................... 1266 B. Other Options Are Inferior to the Proposed Revision...1271 1. The definition of disability should not be left as is ...1271 2. The scope of the definition should not simply be broadened by eliminating the definition’s restrictive terminology................................................1273 3. Funding the unfunded mandate................................1277 4. The definition of disability should not be retained and elucidated through extensive impairment- based lists or formulas ................................................1282 Conclusion .........................................................................................1287 Several recent studies have shown that plaintiffs bringing employment discrimination lawsuits in federal court under Title I of the Americans with Disabilities Act (“ADA”) win only approximately five percent of their cases. This Article argues that this phenomenon is attributable, at least in part, to the ADA’s flawed definition of the term “disability.” It suggests abandoning the current definition and adopting a new approach, one that would reshape the ADA’s protected class so that it more closely resembles a discrete and insular minority, such as those traditionally protected by the civil rights laws. While Title I of the ADA embraces the goals of participatory and distributive justice for all individuals with disabilities, these objectives should be subordinated to the goal of providing corrective justice for those who commonly suffer discrimination. “Individuals with disabilities” should be redefined to mean those with mental or physical impairments that have been targeted for systematic discrimination by public policy or widespread private practice. The ADA should further authorize the Equal Employment Opportunity Commission (“EEOC”) to develop an exclusive list of covered impairments and categories of conditions that are known to be associated with discrimination, such as mental illness, disfigurement, and paralysis. The proposed definition and the list of covered categories would provide much clearer guidance to HOFFMAN.AUTHORCHANGES2.DOC 10/28/2003 2:10 PM 2003] CORRECTIVE JUSTICE AND TITLE I OF THE ADA 1215 plaintiffs, employers, and the courts, and would significantly enhance the efficacy of Title I of the ADA. INTRODUCTION In 2001, the American Bar Association’s (“ABA”) Commission on Mental and Physical Disability Law published a study on Title I of the Americans with Disabilities Act,1 which prohibits employment discrimination against qualified individuals with disabilities.2 The study revealed that employers prevailed in 95.7% of the final Title I case decisions—meaning cases that have gone through the appeals process, if any, or were not yet changed on appeal as of April 2002.3 Professor Ruth Colker published a similar study in 1999 concluding that defendants prevailed in 94% of cases at the federal district court level and in 84% of cases in which losing plaintiffs appealed their judgments.4 Another scholar, Louis S. Rulli, published a study of all reported ADA cases litigated in the Eastern District of Pennsylvania during 1996, 1997, and 1998.5 Much like the other researchers, Rulli found that employers prevailed in 94.2% of Title I cases, experiencing their highest win rate in 1998.6 He noted that “[p]laintiffs stumbled most often by not being able to satisfy the definition of disability, despite 7 clearly possessing physical or mental impairments.” 1. 42 U.S.C. §§ 12111-12117 (2000). 2. Id. § 12112(a). 3. Amy L. Allbright, 2001 Employment Decisions Under the ADA Title I—Survey Update, 26 MENTAL & PHYSICAL DISABILITY L. REP. 394, 394-98 (2002). Prior ABA surveys, conducted for the years 1992-2000, revealed similarly high employer win rates. Id. According to the ABA, in the years 1992 through 1997, plaintiffs lost 91.6% of the 1,200 cases litigated. See id. at 397 (excluding from the database lower court decisions that were overruled on appeal). Likewise, employee-plaintiffs lost 94.4%, 95.7% and 96.4% of cases in 1998, 1999, and 2000, respectively. Id. 4. Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 HARV. C.R.-C.L. L. REV. 99, 108 (1999) [hereinafter Colker, A Windfall for Defendants]. In a subsequent study, Colker analyzed appellate cases in greater detail to determine which factors might predict ADA appellate outcomes. Ruth Colker, Winning and Losing Under the Americans with Disabilities Act, 62 OHIO ST. L.J. 239, 244-78 (2001) [hereinafter Colker, Winning and Losing] (examining a database of 720 published and unpublished cases available on Westlaw and finding that employers obtained full reversal in 42% of the cases they appealed and had damages reduced in an additional 17.5% of cases, while plaintiffs who appealed pro-employer judgments obtained reversals in only 12% of cases). 5. Louis S. Rulli, Employment Discrimination Litigation Under the ADA from the Perspective of the Poor: Can the Promise of Title

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