34 Harv. C.R.-C.L. L. Rev. 99 (1999)
The Americans with Disabilities Act: A Windfall for Defendants

handle is hein.journals/hcrcl34 and id is 105 raw text is: The Americans with Disabilities Act:
A Windfall for Defendants
Ruth Colker'
The popular media has often portrayed the Americans with Disabili-
ties Act! (ADA) as a windfall statute for plaintiffs. Columnist Ruth Shalit,
for example, reported in the New Republic that the ADA has created a
lifelong buffet of perks, special breaks and procedural protections for
people with questionable disabilities.2 A senior editor at Reader's Digest
asserted that plaintiffs have used the ADA to trigger an avalanche of
frivolous suits clogging federal courts.'3 Following the United States Su-
preme Court's 1998 landmark interpretation of the ADA in Bragdon v.
Abbott,4 holding that the ADA covered an asymptomatic HIV-infected
dental patient, the New York Times proclaimed that it was now clear that
the law would also cover other conditions ... including infertility, well-
controlled diabetes, and cancer that is in remission after treatment.5
In response to the media's portrayal of the ADA, the United States
Commission on Civil Rights has recently blamed misleading and some-
times inaccurate news coverage for the public's negative perception and
gross misunderstanding of the ADA.6 Indeed, contrary to popular me-
Ruth Colker, Heck-Faust Memorial Chair in Constitutional Law, Ohio State Univer-
sity College of Law. Numerous people and entities provided assistance with this project.
The Socio-Legal Center at Ohio State University College of Law provided a grant that
supported the empirical aspect of this project. Professors James Brudney and Deborah
Merritt offered very helpful guidance on how to construct a useful database. Kristen Car-
nahan, Leslie Kerns, and Theodore Wern provided invaluable research assistance. Wendy
Watson provided assistance in constructing the coding scheme. Professors James Brudney,
Arthur Greenbaum, Alan Michaels, Allan Samansky, and Peter Swire provided extremely
helpful written comments on an earlier draft. Finally, I would like to thank the participants
in the faculty workshop at Ohio State University College of Law who were a wonderful
and helpful audience when I presented an earlier draft of this paper.
'42 U.S.C. §§ 12101-12213 (1994).
2 Ruth Shalit, Defining Disability Down, NEW REPUBLIC, Apr. 25, 1997, at 16.
3 Trevor Armbrister, A Good Law Gone Bad, READER'S DIG., May 1998, at 145, 149;
see also John Leo, Let's Lower the Bar, U.S. NEWS & WORLD REP., Oct. 5, 1998, at 19
(arguing the ADA has the potential 'to force the rethinking and watering down of every
imaginable standard of competence, whether of mind, body, or character.' (quoting WAL-
TER OLSON, THE EXCUSE FACTORY (1997))).
4 118 S. Ct. 2196 (1998).
5 Linda Greenhouse, Ruling on Bias Law: Infected People Can Be Covered Even With
No Symptoms, N.Y. TIMES, June 26, 1998, at Al. Ten days earlier, the Court rendered a
unanimous decision in which it concluded that the ADA covers claims brought by state
prison inmates who are disabled. See Pennsylvania Dep't of Corrections v. Yeskey, 118 S.
Ct. 1952 (1998). This decision also resulted in an expansive interpretation of the statute.
6 See Federal Enforcement of ADA Falls Short, Civil Rights Commission Says in Re-
port, 67 U.S.L.W. (BNA) 2199 (Oct. 13, 1998) (summarizing U.S. CIVIL RIGHTS COMM'N,
HELPING EMPLOYERS COMPLY WITH THE ADA AND HELPING STATE AND LOCAL GOVERN-

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