Congressional Research Service
The Library of Congress

Washington, D.C. 20540

May 18, 1989

TO:

FROM: American Law Division

SUBJECT: Analysis of “Regarded as Having an Impairment" and "About to be Discriminated Against" Language in Draft Americans with Disabilities Act

I. Introduction

	This memorandum is furnished in response to your request for an analysis of two phrases that are used in the draft Americans with Disabilities Act (ADA). This legislation would basically prohibit discrimination against persons with disabilities in the private sector. Present law, as embodied in
section 504 of the Rehabilitation Act of 1973, 29 U.S.C. sec. 794, is applicable only to programs or activities that receive federal financial assistance, executive agencies or the U.S. Postal Service.

	The term disability is defined in the ADA as meaning with respect to an individual "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." The ADA contains several enforcement sections which provide for certain remedies if an individual believes he or she “is being or about to be subjected to discrimination on the basis of disability." This memorandum will analyze these two provisions and compare them to existing legal interpretations.

II. "About to be Subjected to Discrimination"

	No direct parallels were found to the language in the enforcement sections of the ADA allowing remedies to become available for individuals who believe they are "about to be subjected to discrimination.” Section 505 of the Rehabilitation Act, 29 U.S.C. sec. 794a, which contains the remedies provisions for section 504 provides for remedies "to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title." No "about to be discriminated against" language was found in the section 504 regulations or in the statutory requirements of title VII of the Civil Rights Act, 42 U.S.C. sec. 2000e-5. A Lexis computer search of the term in both the Federal and state files yielded no judicial decisions.

	The closest statutory parallel is found in the Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, P.L. 100-430. The original definition of "person aggrieved" under the Fair Housing Act enforcement provisions was "[a]ny person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur." ^1 The Fair Housing Amendments Act of 1988 added a definition of "aggrieved person” to the definitions section which defined such a term as including "any person who -- (1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur."

	The House Report ^2 discussed this change in the definition.

	Aggrieved person. Provides a definition of aggrieved person to be used under this act. In 	Gladstone Realtors v. Village of Bellwood, the Supreme Court affirmed that standing requirements 	for judicial and administrative review are identical under title VII. In Havens Realty Corp. v. 	Coleman, the Court held that "testers" have standing to sue under title VIII, because Section 	804(d) prohibits the representation "to any person because of race, color, religion, sex or 	national origin that any dwelling is not available for inspection, sale or rental when such 	dwelling is in fact so available." The bill adopts as its definition language similar to that 	contained in Section 810 of existing law, as modified to reaffirm the broad holdings of these 	cases.

	The report correctly states the holding in Gladstone but the part of the definition at issue there was the first category -- a person who claims to have been injured by a discriminatory housing practice -- not the second category of persons who believe they will be injured. In addition, the Court in Gladstone emphasized that although Congress may expand standing to the full extent permitted by Article III of the Constitution, Congress cannot abrogate the essential constitutional requirement that a plaintiff must always have suffered “‘a distinct and palpable injury to himself’ that is likely to be redressed if the requested relief is granted.” ^3 Certainly the Court in Gladstone and Havens Realty Corporation indicated that a "tester" for housing discrimination purposes has standing to sue but the application of the language for other purposes is not as clear and will probably await further judicial action.

	In the apparent absence of prior interpretation or legislative history, the question then becomes what is the meaning of this phrase in the ADA? It could be argued that such language is necessary to allow for immediate remedies. For example, if construction of a building were being planned and it was determined not to be accessible for persons with disabilities, it could be argued that the "about to be discriminated against" language would be necessary in order to assure that the building was planned to be accessible. In other words, the language could mean that it was not necessary to wait until the building was complete until remedies were pursued. However, even without this language it could be argued that drafting blueprints or obtaining permits for an inaccessible building are actual acts of discrimination, thus allowing the use of remedies without waiting for completed construction. It could also be argued that the "about to be discriminated against” language could create a serious potential for nuisance suits, especially in areas such as employment. For example, in the area of employment it might be possible to argue that such language would allow suit prior to the instituting of any adverse action against an employee and that such suit could be premised on erroneous interpretations of casual conversations.

	This type of language could also raise constitutional questions under Article III of the Constitution. As was noted by the Court in Gladstone, Congress may expand standing to sue, but there must be the constitutional minimum of a plaintiff who has suffered a distinct and palpable injury to himself. To the extent that the about to be discriminated against language could be interpreted to allow suit without such a distinct injury, it could face constitutional challenge.

^1 42 U.S.C. sec. 3610, P.L. 90-284, sec. 810.

^2 H.Rep. No. 711, 100th Cong. 2d Sess., reprinted in [1988] U.S. Code
Cong. & Ad. News 2173, 2184. There were no Senate or Conference Reports
on P.L. 100-430. The congressional debate also did not center around this
provision and there were only a few references to enforcement. For example,
see 134 Cong. Rec. S 10556 (Aug. 2, 1988) (statement of Senator Cranston)
discussing the strengthening of enforcement provisions.

^3 Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979)
(citing Simon vu. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26,
38 (1976)).

Il. “Regarded as Having an Impairment"

	The phrase "being regarded as having such an impairment” in the ADA definition of disability is patterned after definitional language applicable to section 504. 29 U.S.C. sec. 706(8)(B) defines the term “individual with handicaps" as meaning “any individual who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." (emphasis added). The term “is regarded as having such an impairment" is defined in the lead agency regulations for section 504 as meaning "(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a recipient as constituting such as limitation; (ii) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (iii) has none of the impairments defined in paragraph (b)(1) of this section but is treated by a recipient as having such an impairment." ^4

	The “regarded as having such an impairment" language was added to the definition of individual with handicaps in 1974 as part of a revision of the definition to more appropriately reflect the coverage of discriminatory practices. The Senate report on the amendment indicated that it reflected Congress’ concern with prohibiting discrimination based not only on simply prejudice but also on stereotypical attitudes and ignorance about individuals with disabilities. This was seen as having a parallel in race discrimination cases where a person is regarded as being a member of a minority group even if he or she is not. ^5

	There have been several judicial interpretations of the "regarded as" language. These decisions have generally followed the logic of the regulatory definition of the term. In a recent ninth circuit case, Thornhill v. Marsh, 866 F.2d 1182 (9th Cir. 1989), the court reversed and remanded a district court decision which had granted summary judgment for the defendant, applying the second standard in the regulatory definition. The plaintiff had been hired by the Corps of Engineers as a utility man, a job that required frequent lifting of up to 50 pounds of material. However, his employment was conditioned upon passing a physical examination and this examination revealed a congenital spinal deformity. The plaintiff had brought suit alleging that he was "regarded as" handicapped because of the congenital back deformity. The court found that the plaintiff's handicap was not that he could not meet the physical qualifications of the job but rather his handicap was his congenital back deformity which was perceived as imposing a disqualifying limitation. In other words, he was seen as having a physical impairment that did not substantially limit a major life activity but was treated as constituting such a limitation. The court then observed that the plaintiff could then be both handicapped and otherwise qualified for the job.

	In Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986), the court dealt with	the issue of the meaning of the substantial limitation qualification in the regulations. More specifically, the court examined whether the "regarded as" language is brought into play any time an employer finds an employee or applicant incapable of satisfying the particular demands of a specific job. The plaintiff in Forrisi was hired as a utility systems repairer and operator with a requirement that he be able to climb stairways and ladders. He indicated [cutoff]

^4 28 C.F.R. sec. 41.31(b)(4).

^5 S. Rep. No. 1297, 93d Cong., 2d Sess., reprinted in [1974] U.S. Code
Cong. & Ad. News 6373, 6389.


221011.186
S.L.C.

20

	...ered discrimination for an individual or entity to fail to have one car per train that is accessible to individuals who use wheelchairs in accordance with the time limits identified under subparagraph (B).

	(B) TIME LIMITS.—

		(i) INTERCITY, RAPID, AND LIGHT
	RAIL.—Not later than 10 years after the date of enactment of this Act, individuals or entities 	identified under subparagraph (A) shall make all structural changes to or replacement of existing 	rail vehicles and rolling stock necessary to make all its intercity, rapid and light rail 		vehicles and rolling stock comply with such subparagraph.

	(ii) COMMUTER RAIL.—Not later than 5 years after the date of enactment of this Act, individuals 	or entities identifies under subparagraph (A) shall make all structural changes to or replacement 	of existing rail vehicles and rolling stock necessary to make all of its commuter rail vehicles 		and rolling stock comply with such subparagraph.

CRS-6

	precedent for holding that one’s sexual orientation or preference falls within the compass of the Rehabilitation Act....". At 1183. The court vacated the district court’s judgment on the ground that it appeared to state that relief under the Rehabilitation Act is conditioned on a plaintiffs giving an interviewing officer precise notice of a handicap that is not readily apparent and that this notice requirement was not supported by judicial or regulatory interpretation. Reading Blackwell along with the statute and regulator language, it would appear that homosexuals would most likely not be covered under section 504 simply on the basis of sexual orientation. However, to the extent that an individual is discriminated against because he is regarded as being HIV positive, it would be possible to create an argument for coverage.

IV. Conclusion

	In summary, no direct parallel was found for the "about to be discriminated against" language in the ADA although similar language was added to the definition of aggrieved person in the Fair Housing Act Amendments of 1988. This language could raise some troubling issues concerning its application in situations such as employment and if interpreted broadly could raise a constitutional issue regarding Article II standing. The phrase "regarded as having such an impairment" is clearly based on the definition applicable to section 504. The intention behind such coverage under section 504 is to reach discrimination that results from stereotypical attitudes and ignorance. The judicial decisions on this term have required that the impairment the individual is regarded as having be a substantial one but have left several issues unresolved.

	We hope this has been useful to you. If we may be of further assistance, please contact us.


Nancy Lee Jones
Legislative Attorney