Hi, I wondered what people thought of this.

Catherine

From June's Economist

#43  Anyone not included?: Defining the disabled.

EMPLOYERS heaved a huge sigh of relief this week when the Supreme Court
refused to expand coverage of the Americans With Disabilities Act to those
who suffer from treatable conditions such as poor eyesight or hypertension.
But whether these decisions mark a real retreat from the court's expansion
of employment-discrimination law is still unclear. In decisions on three
other recent cases, the court has gone the other way.
The key disability case before the court concerned two short-sighted sisters
who had been turned down for jobs as pilots with United Airlines because
they did not meet its corporate standards for uncorrected vision. With
glasses, however, they do meet federal vision standards and have worked as
pilots for regional airlines. Two other cases involved a lorry driver with
functional vision in only one eye who received a waiver from federal
regulators allowing him to drive, but was fired anyway; and a car mechanic
whose blood pressure debarred him from meeting federal standards for driving
a truck, and so lost his job as a mechanic which also included some driving
chores. The discrimination claims in all of these three cases were rejected
by the same 7-2 majority of justices.
Although the cases raised slightly different issues, the most important
question in each was whether the 1990 Disabilities Act offered protection
against discrimination to those whose physical shortcomings can be helped by
spectacles or medical treatment. Writing the majority's decision in the
leading case, that of the pilots, Justice Sandra Day O'Connor argued that
the law's definition of a disability as something that "substantially limits
one or more of the major life activities'' means that if the impairment is
corrected, it no longer meets the definition. She also pointed out that the
law refers to "some 43m Americans'' who have one or more physical or mental
disabilities. Congress could not have meant to include all those who wear
glasses or have some other correctable problem, she reasoned, or the figure
would have been closer to 160m. The decision means, for example, that United
Airlines can impose its own rule for uncorrected eyesight, more stringent
than federal guidelines, if the rule is reasonably related to a job
requirement.
The two dissenters in the three cases were John Paul Stevens and Stephen
Breyer, the court's two most liberal justices. In his dissent on the airline
case, Justice Stevens not only urged a more "generous rather than a miserly
construction'' of the law, but also raised an interesting point: "It is
especially ironic to deny protection for persons with substantially limiting
impairments that, when corrected, render them fully able and employable.''
Disability advocates echoed the point. "These decisions create the absurd
result of a person being disabled enough to be fired from a job, but not
disabled enough to challenge the firing,'' complained Chai Feldblum, a law
professor at Georgetown University who had helped draft the law.
It is the broad language of the law, and that of Title VII of the 1964 Civil
Rights Act, which has dragged the court into coming up with rules of its own
to interpret what Congress meant. In fact, Congress's priority in both cases
has been to avoid making the politically tough decision of who should and
who should not be protected by discrimination statutes, which explains both
the loose wording of the original laws and the reluctance of Congress to
intervene with more specific legislation later.
For years a divided court has struggled to untangle a wave of conflicting
lower-court rulings and to make some consistent sense of how the laws should
be applied. The result has been a vast expansion of the legal protections
against both disability and sexual discrimination. For example, last year
the court extended disabilities protection to anyone with a "reproductive''
complaint-ie, those with HIV, impotence or infertility-and protection
against same-sex harassment. Employees have responded with a wave of
lawsuits. Employers have bewailed the growing regulation of the American
workplace.
Despite the three decisions this week, the expansion of protections is not
over yet. In separate decisions announced the same day, the court also ruled
that Georgia had breached the Disabilities Act by not providing community,
rather than hospital, care for mentally ill patients who qualified for it,
and that a plaintiff in a sexual discrimination suit did not have to show
that an employer's behaviour was "egregious'' to collect punitive damages.
Last month the court decided by 5-4 that schools could be sued for failing
to stop sexual harassment of one pupil by another. The decision provoked a
furious dissent from conservative justices in the minority, who predicted a
wave of lawsuits-and may well be right.

The Economist
Copyright (C) The Economist Newspaper Ltd, 1981-1997


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