Travis on the ADAAA

Just out: Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, 46 Ga. L. Rev. 937 (2012).  From the introduction:

The ADAAA's new form of universality has the potential to provide a cohesive alternative to the two existing theories that often divide the disability rights community regarding the most effective form of civil rights legislation. Advocates on one side of this divide contend that disability should be recognized and respected as a minority group status. While emphasizing that disability is not an inherent trait, these advocates highlight the distinct life experiences shared only by those individuals whose particular impairments produce significant functional limitations, widespread stigma, and pervasive social exclusion. These advocates argue that civil rights coverage should be limited only to members of this socially constructed but identifiable and subordinated minority. 

Advocates on the other side of the divide argue that disability is better understood as a universal continuum that reflects infinite degrees of socially imposed limitation. Supporters of the continuum approach question the ability to identify a discrete and insular minority, and they contend that any attempt to do so reinforces the notion of disability as an intrinsic personal deficit-a notion that both sides uniformly denounce.  Under this “traditional” form of universalism, civil rights law would neither distinguish nor exclude from coverage any individual who experiences any form of impairment-based disadvantage. While those in favor of minority group treatment argue that the continuum approach ignores and disrespects the existence of a unique disability identity, traditional universalists believe that conceptualizing disability as a continuum is the only way to erase the stigmatizing line that society has drawn between “us” and “them.” 

The ADAAA offers an alternative approach to disability civil rights coverage-an approach that has the potential to bridge the existing divide and thereby strengthen the disability rights movement. Understanding the ADAAA as having implicitly elevated impairment to protected class status alongside disability-rather than as having merely expanded the definition of disability-could reveal the statute as having combined the most compelling elements of both traditional universalism and of the minority group approach.
By granting legal protection for nearly all physical and mental impairments, the ADAAA recognizes the critical insight of traditional universalists about the importance of broad statutory coverage in reducing socio-legal backlash. Yet unlike the traditional universalist endeavor, the ADAAA does not erase the line between the disabled and the nondisabled-either as a matter of formal law or of public perception. To the contrary, the ADAAA embraces difference by distinguishing disability from impairment and by using that distinction as the dividing line between the affirmative right to workplace accommodations and the negative right to be free from simple discrimination. In this way, the ADAAA's new universality offers the opportunity to achieve the traditional universalist objective of expanding the group of workers who view themselves as ADA stakeholders, while at the same time acknowledging the respect for difference that plays such a central role in the minority group approach. 

Unfortunately, the ADAAA's potential for charting such a new and unifying path for disability civil rights has largely gone unrecognized, in part because the primary drafters made the necessary strategic decision to frame the ADAAA as merely a restorative bill, rather than as an innovative piece of civil rights legislation. Until recently, the ADAAA's potential has also remained dormant in the courts because of the statute's non-retroactivity, which has meant that pre-ADAAA law has continued to govern many cases long after the ADAAA's effective date. But now that enactment is behind us and the development of ADAAA case law has finally begun, it is time to render more explicit the full opportunity that the ADAAA presents for advancing a disability civil rights agenda.