How Sandra Day O'Connor Disabled the ADA: Blinded by Textualism

(Photo Credit: Thomas Dolby, She Blinded Me with Science)

Two women with severe myopia were not considered for a pilot job by United Air Lines. They were pilots, however for United’s regional jet airline. They were merely applying for a better job. Their vision was correctable to 20/20 with glasses. Still, the airline refused to process their application because of their myopia.

In a far-reaching decision, Justice O’Connor (now afflicted with dementia) wrote that the women were not disabled. This is because their vision impairment was correctable to normal with glasses.

Justice John Paul Stevens put this ruling in perspective with a withering dissent:

“The Court’s approach would seem to allow an employer to refuse to hire every person who has epilepsy or diabetes that is controlled by medication, or every person who functions efficiently with a prosthetic limb."

How did Justice O’Connor conclude that people with correctable or controllable disabilities are not disabled? She used textualism: By reading closely the text of the ADA, which says that a person is disabled if he or she has a substantial impairment, she said that Congress used the “present indicative tense.” Thus, if a person wears glasses that corrects bad vision, or takes medication to control epilepsy, or walks with a prosthetic leg, or has normal hearing while using hearing aids, those people presently are not substantially impaired.

The lesson here is the blinding effect of textualism. Congress never debates legislation by pulling out dictionaries and having an interpretation duel between the Oxford English Dictionary and Merriam Online Dictionary. The clear intent of the ADA was to provide legal protection to people who have a substantial physical or mental impairment—and even then, employers are not required to hire them, but simply to consider a reasonable accommodation that would allow them to perform the essential functions of the job.

If the two applicants in the United case were okay to fly passengers from O’Hare to Champaign on a regional jet, why weren’t they okay to fly passengers on a jet from O’Hare to Orlando?

Congress passed a law in 2009 that overruled Justice O’Connor’s decision—and President Barack Obama signed it. This means if you are controlling a substantial impairment by taking medication or using therapy or assisting technology, the law gets you into the interview room with an employer, if you are otherwise qualified. That was—and is— the intent of the ADA, rather than a glorification of sentence diagramming put forth by Justice O’Connor.