Are insurance companies liable under the Americans with Disabilities Act?

Federal courts have split on the question of the applicability of the Americans with Disabilities Act to insurance coverage decisions that insurance companies make on the basis of disability; they have similarly split on other issues pertaining to the scope of that Act's application. In deciding whether to read the Act as prohibiting discrimination in insurance decisions that are often crucial in the lives of people with disabilities, courts have faced two problems. First, where it prohibits discrimination in the equal enjoyment of the goods and services of places of public accommodation, the Act's area of concern may be limited to the ability of people with disabilities to gain physical access to facilities; or that area may extend to all forms of disability-based discrimination in the provision of goods and services. This Comment argues that the language and legislative history of the Act are consistent only with the latter view. Second, the provision limiting the Act's applicability to insurance may create an exemption for all insurance decisions; or it may protect only the ability of an insurance company to make an insurance decision to the disadvantage of an insured with a disability where actuarial data support the decision. This comment argues that the ambiguous language of the limiting provision should be resolved in favor of the latter view. Legislative history and the broader background of the history of insurance discrimination law support this resolution. Consequently, the Act should be interpreted as prohibiting disability-based discrimination by insurance companies in selling insurance policies and as defining discrimination as making disability-based insurance decisions without the support of actuarial data. By accepting this interpretation, courts can help stop the pattern of judicial narrowing of the Act's application through inappropriately restrictive statutory construction.