DISSENTING IN the principal case the Supreme Court decided the other day having to do with disability, Justice Stephen Breyer wrote that the court had been faced with a lose-lose proposition. The choice had been to include within the protections of the Americans with Disabilities Act some people whom "Congress may not have wanted to protect" because their impairments were relatively minor and easily correctable, or in the course of excluding those, to exclude at the same time others with more serious impairments whom Congress "certainly" did want to cover.
The court chose the second alternative, 7 to 2. Among much else, the majority apparently felt that to do otherwise would be to add to the work of "an already overburdened judiciary" by bringing law to bear on "issues best left to the private sphere." So suggested Justice John Paul Stevens in the dissent in which Justice Breyer joined. But the majority decision raised its own set of questions and will bring on its own further wave of litigation.
This was a case of twin sisters who were denied commercial pilots' jobs because they were nearsighted, even though their nearsightedness could be and was corrected by glasses. They sued, claiming discrimination under the disabilities act. But because their poor vision had been corrected, the court said they weren't disabled and therefore weren't entitled to sue, even though the poor vision remained the reason that they were turned down.
It's ridiculous to have disability policy hinge on a set of facts as far on the fringe of the underlying issue as these. Who in public life wants to take up the cause of forcing airlines to ease the eyesight standards that they set for their pilots? It trivializes the serious problems the disabilities act is meant to -- and has begun to -- overcome to have the question of its scope come down to a dispute over common myopia. But of course that's not where it will rest. The issue now becomes, at least in part, what is meant by correctable. If an employer can somehow accommodate a disability, does that mean he doesn't have to, because the employee becomes, by definition, no longer disabled? That's where part of this fight is headed.
Lawsuits can, over time, help resolve the problem of this good statute's scope. But they are the wrong way to do it. It seems pretty plain that Congress didn't mean the act to apply to minor disabilities. It said so in some respects, but not in all, which is why this case ended up in court. The elected branches -- Congress and the enforcement agencies -- are the ones that ought to draw the missing line that Justice Breyer spoke of. That's where this case needs to go next.