1 See Americans with Disabilities Act of 1990,42 U.S.C. § 12101(a)(1) (1999).

2 Individuals with disabilities have historically been discriminated against in virtually every aspect of public life. See id. § 12101(a). In particular, they experience social, vocational, economic and educational disadvantages, and tend to be segregated in society. See id. § 12101(a)(3), (a)(6),(a)(2).

3 See Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994) (prohibiting discrimination against qualified individuals with disabilities in any program or activity receiving federal financial assistance).

4 See 42 U.S.C. § 12101(a)(4).

5 Id. § 12101(b)(1)- Additional purposes of the ADA include the desire to furnish "clear, strong, consistent, enforceable standards" regarding disability discrimination, to ensure the federal government's primary role in compelling compliance with the Act, and to "invoke the sweep of congressional authority" to combat disability discrimination. Id. § 12101(b)(2)—(4).

6 See id. § 12101(a)(3).

7 See id. § 12112.

8 See discussioninfra Parts IV.A-B.

9 See Griffin v. Steeltek, Inc., 160 F.3d 591, 595 (10th Cir. 1998) (holding that a job applicant does not have to show that he or she is disabled to state a prima facie case under the pre-employment medical inquiry provisions of the ADA); Mack v. Johnstown America Corp., No. 97-325J, 1999 U.S. Dist. LEXIS 6917, *15-16 (W.D. Pa. May 12, 1999) (concluding that because Congress used the term "job applicant" rather than "qualified individual with a disability," a job applicant need not be disabled in order to maintain a cause of action under section 12112(d)(2) of the ADA). See also discussion infra Part IV.A.

10 See discussion infra Part IV.A.

11 See 42 U.S.C. § 12101(a)(8).

12 See id. §§ 12111-12117, 12131-12165, 12181-12189.

13 See id. §§ 12201-12213. The miscellaneous provisions include, among other things, a prohibition against retaliation and coercion against persons bringing a claim under the ADA, the recovery of attorney's fees to the prevailing party in an ADA claim, and a prohibition on categorizing illegal drug use as a disability. See §§ 12203, 12205, 12210.

14 Id. § 12102(2).

15 The use of the disjunctive word "or" indicates that a person satisfying any one of the three criteria is to be considered disabled. See § 12102(2).

16 See 42 U.S.C. §§ 12111-12117. For a more comprehensive look at Title I, see discussion infra Parts III and IV.

17 See id. § 12112(a) (prohibiting discrimination against a qualified individual with a disability with regard to "job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment").

18 ™ See id. §§ 12131-12165.

19 See id. § 12132 (protecting the disabled from discrimination by way of exclusion from participation in or denial of the benefits of the "services, programs, or activities of a public entity").

20 See id. §§ 12142-12144.

21 See 42 U.S.C. § 12131 (defining covered public entities as state or local governments, and "department, agency, special purpose district, or other instrumentality of a State or States of local government," and the National Railroad Passenger Corporation and other commuter authorities as defined in 49 U.S.C. § 24102(4)).

22 See id. §§ 12181-12189. "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases . . . or operates a place of public accommodation." Id. § 12182.

23 See id. § 12183.

24 See id. § 12182(b)(2)(iv).

25 See id. §§ 12181(7)(A), 12181(7)(B), 12181(7)(E).

26 See 42 U.S.C. § 12184(a).

27 See id. §§ 12201-12213.

28 See id. § 12203.

29 See id. §§ 12205, 12212.

30 See H.R. Rep. No. 101-485, pt. 2, at 31 (1985); see also Samuel Estreicher & MrChael C. Harper, Cases & Materials on Employment Discrimination and Employment Law 515 (2000).

31 See H.R. Rep. No. 101-85, pt. 2, at 32; see also Estreicher & Harper, supra note 30, at 515.

32 See H.R. Rep. No. 101-85, pt. 2, at 32; see also Estreicher & Harper, supra note 30, at 515.

33 See H.R. Rep. No. 101-85, pt. 2, at 32; see also Estreicher & Harper, supra note 30, at 515.

34 See Samuel Estreicher & Michael C. Harper, the Law Governing the Employment Relationship 437-38 (2d ed. 1992).

35 See id. at 437.

36 See id. at 438.

37 See id.

38 »See 42 U.S.C. § 12111(5)(A).

39 See id. § 12111(5)(B). "The term "employer" does not include .. . the United States . . . [or] a corporation wholly owned by the government of the United States . . . ." Id.

40 Id. § 12112(5)(A)-(B).

41 See id. § 12111(8)—(10). For a discussion of the employer's duty of reasonable accommodation and the defense of undue hardship, see Vande Zande v. Wisconsin Dcp't of Admin., 44 F.3d 538, 542-45 (7th Cir. 1995) (holding that an employer need not provide a disabled employee with a home computer under the duty of reasonable accommodation).

42 See 42 U.S.C. § 12112(d).

43 Id § 12112(d)(l)-(2)

44 The Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l) (1999).

45 See 42 U.S.C. § 12117(a). The specific enforcement provisions of Title VII incorporated into the ADA include sections 2000e-4, 2000e-5, 2000e-6, 2000e-8 and 2000e-9. See id.

46 See 42 U.S.C. § 2000e-5(g).

47 See id.

48 See EEOC Guidelines on Americans with Disabilities Act of 1990, 29 C.F.R. pt. 1630.13(a) app. (2000).

49 See id. pt. 1630.14(a) app.

50 See id.

51 See id. For example, an employer may ask a person with one leg who applies for a job as a washing machine repairperson to demonstrate or explain how, with or without a reasonable accommodation, she or he would be able to move herself or himself and her or his tools up and down basement stairs. See id.

52 See id. pt. 1630 app. (emphasis added).

53 See id.

54 160F.3d591.

55 See id. at 592.

56 See id.

57 See id.

58 See id.

59 See id. According to the district court, Griffin failed to allege that he was either actually disabled or perceived to be disabled as defined by the ADA. See Griffin v. Steeltek, Inc., 964 F. Supp. 317 (N.D. Okla. 1997).

60 Griffin, 160F.3dat595.

61 Id. at 594.

62 See id.

63 See id. For an analysis of this reasoning, see discussion infra Part IV.C.3.

64 See No. 97-325J, 1999 U.S. Dist. LEXIS 6917 (W.D. Pa. May 12, 1999).

65 See id. at *1.

66 See id. at *l-2.

67 See id. at *2.

68 See id.

69 See id.

70 See id.

71 See id.

72 See id. at *1. 1*

73 See id. at* 15.

74 Id.

75 Id.

76 See id. at *16.

77 See Murdock v. Washington, 193 F.3d. 510, 512 (7th Cir. 1999); Cossette v. Minnesota Power & Light, 188 F.3d 964, 969 (8th Cir. 1999).

78 8 193F.3d510.

79 Id. at 512.

80 188 F.3d964.

81 See id. at 969. It should be noted, however, that Cossette involved sections 12112(d)(3) and(d)(4), provisions dealing with medical examinations and inquiries of persons to whom offers of employment have been extended, and whom are already working for the employer. See id. at 969; 42 U.S.C. §§ 12112(d)(3)-(d)(4).

82 Cossette, 188 F.3d at 969.

83 3 1999 U.S. App. LEXIS 31996 (10th Cir. Dec. 6, 1999).

84 Id. at *7.

85 141 F.3d 554 (5th Cir. 1998).

86 See id. at 556.

87 See id.

88 See id.

89 See id.

90 See id.

91 See id. at 556.

92 See id. at 557.

93 See id.

94 Id. at 562.

95 For a general criticism of the Armstrong opinion and its potential effect on future job applicants, see James C. Harrington, Survey Article: Civil Rights, 30 Tex. Tech L. Rev. 507, 532 (1999) (stating that to require Armstrong, who was not disabled, to demonstrate an injury causally related to a violation of the ADA amounts to "splitting hairs because the company profited from using the illegal questionnaire and searching for information in a pre-employment context that violated the ADA").

96 Consider the assertion of Harrington, supra note 95, at 533 that "[t]his case illustrates the Fifth Circuit's unfriendliness, if not animosity, toward vigorous enforcement of civil rights laws." Id. at 533.

97 See. e.g., Adler v. I & M Rail Link, L.L.C., 13 F. Supp. 2d 912, 933-38 (N.D. Iowa 1998) (using statutory construction and legislative history to conclude that non-disabled individuals are not provided a course of action under section 12112(d)(2)(A)).

98 No. 96 C 6304, 1997 U.S. Dist. LEXIS 9031 (N.D. 111. June 18, 1997).

99 See id. at *2.

100 See id. at *17.

101 See id. at *17-18.

102 See id. at *18; see also 42 U.S.C. §12112(a).

103 See Varnagis, 1997 U.S. Dist. LEXIS 9031, at *18.

104 See id. (stating that the court was basing its discussion on a consideration of the ADA in its entirety); see also Worthington v. City of New Haven, 1999 U.S. Dist. LEXIS 16104 (D. Conn. Oct. 5, 1999); Murray v. John D. Archbold Mem'l. Hosp., Inc., 50 F. Supp. 2d 1368 (M.D. Ga. 1999); Sacay v. Research Found., 44 F. Supp. 496 (E.D. N.Y. 1999).

105 1999 u.s . Dist. LEXIS 16104 (D. Conn. Oct. 5, 1999).

106 Id. at *24-25.

107 50 F. Supp. 2d 1368.

108 See M. at 1379.

109 Id. at 1375.

110 44F . Supp. 2d 496.

111 Id. at 501-02.

112 For the contrary argument that non-disabled individuals should be permitted to bring suit under section 12112(d)(2)(A), see Natalie R. Azinger, Comment, Too Healthy to Sue Under the ADAΠThe Controversy Over Pre-Offer Medical Inquiries, 25 Iowa J. Corp. L. 193 (Fall 1999).

113 See Antonin Scalia, Common-Law Courts in A Civil-Law System: the Role of United States Federal Courts in Interpreting the Constitution and Laws 16-17 (1997) (referring to one of the "few generally accepted concrete rules of statutory construction" as "the rule that when the text of a statute is clear, that is the end of the matter . . . [i]t is the law that governs, not the intent of the lawgiver" (emphasis in original)). Justice Holmes once said, "We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, Collected Legal Papers 207 (1920).

114 See Varnagis, 1997 U.S. Dist. LEXIS 9031, at *17-18. See also discussion supra notes 100-03 and accompanying text.

115 42 U.S.C. § 12112(d)(1).

116 Id. § 12112(a).

117 See 29 C.F.R. pt. 1630.

118 See 42 U.S.C. §§ 12116-12117.

119 29 C.F.R. pt. 1630.4.

120 12029 C.F.R. pt. 1630.14(a) specifically refers to "pre-employment" medical inquiries of "applicants." This language indicates that such inquiries would be assumed to be part of the "job application process" discussed in 29 C.F.R. pt. 1630.4.

121 However, the EEOC itself may no longer be clear on this issue. The EEOC filed amicus briefs in both Armstrong and Griffin in support of a construction of § 12112(d)(2) which would provide applicants with a cause of action irrespective of disability. See Armstrong, 141 F.3d at 558-59; Griffin, 160F.3dat593.

122 See Griffin, 160 F.3d at 594; Mack, No. 97-325J, 1999 Dist. LEXIS 6917 at *15-16.

123 See Griffin, 160 F.3d at 594; Mack, No. 97-325J, 1999 Dist. LEXIS 6917 at *15-16.

124 See discussion supra Part IV.C.l.

125 See id.

126 See Scalia, supra note 113, at 16.

127 See Griffin, 160 F.3d at 594.

128 Id. (considering in particular H.R. Rep. No. 101-336 (II), at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 333, and noting that the ADA's protection is not limited to "Americans," despite the title).

129 114 F.3d 145 (10th Cir. 1997).

130 Id. at 150 (emphasis added).

131 See discussion supra note 113 and accompanying text.

132 42 U.S.C. § 12101(b)(1).

133 Griffin, 160F.3dat594.

134 See id.

135 See 42 U.S.C. § 12101.

136 See H.R. Rep. No. 101-485, pt. 2 at 31 (1985).

137 See discussion supra Parts IV.A-C.

138 See discussion supra at Part IV.C.

139 See discussion supra note 5 and accompanying text.