The Disability Pendulum.

The Disability Pendulum Ruth Colker New York University Press www.nyupress.org 245 pp., $45

The Americans with Disabilities Act (ADA) went into effect in July 1992. In The Disability Pendulum, Ruth Colker, a noted disability scholar, discusses the act's legislative history and analyzes the first 10 years of litigation involving it. She high lights the irony that this "boldly pro-plaintiff piece of legislation" has been so narrowly interpreted that it protects only a small percentage of the 43 million disabled Americans described in its preamble, and she concludes that initial enforcement efforts have been a "massive disappointment for the disability rights community."

Courts have failed to interpret the ADA in a way that is consistent with clearly expressed congressional intent and the interests of the disabled individuals whom the act was designed to protect, Colker says. For example, she notes, the Supreme Court tends to examine the law's text without reference to legislative history and to ignore interpretations of the EEOC and Department of Justice.

Colker's detailed analysis of litigation results to date is disheartening, but it reflects the anecdotal experience of practitioners who specialize in this area. She suggests that courts have operated as a pendulum, at times interpreting the ADA in a manner that benefits plaintiffs and at other times taking pro-defendant positions.

Colker notes that most appellate court decisions in employment cases favor the defendant. While accessibility cases are more successful for plaintiffs, the limited remedies available make these cases unappealing to plaintiff lawyers, so Title III, the section governing public accommodation, has not been sufficiently enforced. She suggests that Title III must be amended to include monetary damages relief if it is to ensure the type of access Congress intended.

Colker also discusses the Supreme Court's pendulum-like decisions on cases interpreting Title II, which governs access to public services. The Court has ruled for plaintiffs on key issues such as a private right of action to achieve access to courts and the right to live in the least restrictive environment. But it also has allowed the government to defend cases on the basis that providing access would be too costly--and this defense, Colker asserts, does not exist under the act.

The Court has already resolved many key issues that would benefit most from consideration of the law's legislative history, such as the effect of mitigating measures--like eyeglasses for those with vision problems or medication like insulin--on disability status and the undue hardship of reassigning a disabled employee to a position for which he or she does not have sufficient seniority. But Colker's discussion of the law's legislative history might help persuade a lower court to take a broader view of the ADA on other issues.

Colker observes that no empirical study has established that the ADA has had a positive effect on employment opportunities for people with disabilities. This is not surprising, because the ADA has been interpreted narrowly, and discrimination is only one of many barriers to employment for the disabled.

The author's own empirical data may be particularly interesting to practitioners, as it may help with case selection. Most interesting is her analysis of the success rates of ADA claims involving different legal issues and disability types. Her data on state laws requiring access to public facilities and services also should be helpful to practitioners.

The author also discusses the judicial backlash against the ADA. She says that by granting summary judgments in many cases, the courts have improperly taken questions of fact away from the jury on key issues such as disability status, whether the person is qualified for the job, what functions are essential, whether an accommodation is reasonable, and whether accommodating a worker's disability would constitute a direct threat to his or her health or an undue hardship for the employer. And the Supreme Court has shown disrespect for Congress, Colker notes, by issuing decisions that disregard its legislative history and criticize the ADA as having been poorly drafted.

Colker's book provides a comprehensive review of the ADA's history and a thorough analysis of how effective it has been in vindicating the rights of the disabled. She does not paint a pretty picture, but it is an accurate, empirically based assessment.

ADELE RAPPORT is the associate regional attorney for the U.S. Equal Employment Opportunity Commision's Indianapolis District Office, located in Detroit. The views expressed in this review are not commission policy.