Impairment as Protected Status: A New Universality for Disability Rights

Abstract

This Article analyzes the fundamental change to federal civil rights law that Congress accomplished through the ADA Amendments Act of 2008 (the "ADAAA"). Congress enacted the ADAAA in response to a series of United States Supreme Court opinions that had narrowly interpreted the definition of disability in the Americans with Disabilities Act of 1990. Although many commentators have recognized the ADAAA's intent to restore the class of individuals with disabilities to the breadth that Congress originally intended, this Article argues that the ADAAA accomplished something more significant: it extricated disability from the broader concept of impairment. As a result, the ADAAA has placed "impairment" alongside race, religion, national origin, sex, age, and disability as a legally protected status under federal antidiscrimination law. By implicitly elevating impairment to protected class status, the ADAAA offers a profound yet still unrealized opportunity for reframing the disability rights debate around a new form of universality that could meaningfully advance the disability rights movement.

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 contend that disability should be recognized as a subordinated minority status, while advocates on the other side argue that disability is better understood as a universal continuum. This Article argues that understanding the ADAAA as having 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 the minority status viewpoint and the continuum approach.

Keywords: ADA Amendments Act of 2008, ADAAA, disability, civil rights, protected class, impairment, universality, minority status

JEL Classification: K39