Marcosson on the "Title VII-ization" of the ADA

New on Westlaw: Samuel Marcosson, Of Square Pegs and Round Holes: The Supreme Court's Ongoing "Title VII-ization" of the Americans with Disabilities Act, 8 J. Gender Race & Just. 361 (2004). From the introduction:

In this Article, I will explain first how the Court deployed the 43 million figure in Sutton and Williams, exploring in Section I the extent to which the Court's use of this number, and the statutory interpretations it has produced, distort rather than illuminate Congress's purpose and meaning. In Section II, I will propose an explanation for the Court's approach. The decisions in Sutton and Williams indicate that the Court, uncomfortable with what it sees as the ambiguity of the ADA's terms (and perhaps unsympathetic to the policy choices reflected in those terms), has embarked on a course of "interpreting" the ADA's key provisions so as to make the ADA resemble the Title VII template with which the Court is familiar and relatively comfortable. In Section III, I will test this thesis by assessing whether it fits the decision rendered by the Court in Barnett. As I will show, Barnett provides further evidence of the "Title VII-ization" understanding of the Court's work in ADA cases. Finally, in Section IV, I will explore a potentially significant counter-example to my thesis. The Court's decision in Chevron U.S.A. Inc. v. Echazabal did not follow and apply Title VII precedent to the ADA. Instead, the decision conflicts at multiple levels with the Court's 1991 decision in Automobile Workers v. Johnson Controls, Inc. Nevertheless, as I will explain, this one counter-example does not substantially undermine the "square peg" explanation for the Court's ADA case law. Ultimately, there is strong reason to believe the Court has embarked on a path that has led it to ignore crucial differences between the statutes, and to reduce the impact of those attributes Congress included in the ADA in recognition of the distinctive nature of disability discrimination.