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Wendy E. Parmet Plain Meaning and Mitigating Measures Judicial Construction of the Meaning of Disability When I use a word, it means just what I choose it to mean, neither more nor less. —Lewis Carroll When the Americans with Disabilities Act1 was enacted in 1990, supporters heralded it as broad and transformative legislation. Senator Tom Harkin, one of the act’s chief sponsors, asserted that the ADA was “the most important legislation Congress will ever enact for persons with disabilities.”2 No less enthusiastic, President George Bush signed the bill into law stating that “with today’s signing of the landmark Americans for [sic] Disabilities Act, every man, woman and child with a disability can now pass through once closed doors into a bright new era of equality, independence and freedom.”3 Central to their enthusiasm was a belief that the new act would promote the independence and economic self-suf‹ciency of millions of people with disabilities. As Jane West has noted, to achieve these lofty goals, the ADA “require[d] us to change our thinking about people with disabilities. The ADA demands that we focus on people, not on disabilities; that we focus on what they can do, not on what they cannot do.”4 Unfortunately, the impact of the ADA has been less dramatic than predicted . An overwhelming number of plaintiffs have lost their claims.5 In part, this is because much of the focus in ADA litigation has been on what people cannot do, rather than what they can do.6 Frequently, courts have assumed that under the ADA, protection from discrimination is only available when the plaintiff demonstrates substantial inabilities. Thus as the Supreme Court made clear in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, a plaintiff who can lead an independent life, undertaking most activities of daily life, will have trouble establishing his or her disability.7 In a sense, a plaintiff who can do is not viewed as truly disabled. This reluctance to apply the ADA when individuals are able to overcome 122 the effect of their impairments was dramatically evident in three cases decided by the Supreme Court in 1999. In Sutton v. United Airlines,8 Murphy v. United Parcel Service, Inc.9 and Albertson’s, Inc. v. Kirkingburg,10 the Supreme Court held that the bene‹cial impact of medication and other mitigating measures should be considered in determining whether an individual has a disability within the meaning of the ADA. According to the Court, if an individual is not substantially limited in a major life activity when the impairment is mitigated, that individual does not have a disability and is not entitled to protection from discrimination under the ADA. In so holding, the Court followed a path set by many lower courts in reading the ADA’s de‹nition of disability narrowly to apply only to individuals with irremediable impairments. What is striking about the Supreme Court’s decisions, as well as the lower-court cases that preceded them, is the Court’s refusal to follow both the act’s legislative history and regulatory guidance provided by the enforcing administrative agencies. Indeed, only by starkly dismissing an extraordinarily rich legislative history, along with a voluminous set of administrative materials, could a court have concluded that individuals with mitigated impairments do not have disabilities. This paper discusses the mitigating measures issue and the role that different methods of statutory interpretation have played in the courts’ analysis of it. The courts’ treatment of the mitigating measures problem, I argue, results in large part from many courts’ refusal to defer to either the ADA’s legislative history or the administrative interpretations that have been drafted to guide the statute’s implementation. That refusal, in turn, re›ects the increasing preference among federal judges for textualism as a method of statutory interpretation. Textualism, I suggest, relies heavily upon “plain meanings” of terms that bring the interpreter back to the colloquial and stereotypical meanings that the statute was designed to transform. Thus, the rise of textualism presents a formidable obstacle to the realization of the broad goals shared by those who fought to enact the ADA. To explore the relationship between the ADA and textualism, I begin by brie›y reviewing the history of the ADA and the vision of social discrimination that informed it. Next, I consider more speci‹cally the problem of mitigating measures, reviewing both the legislative history pertaining to the issue and the administrative guidance on the subject. I also discuss...

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