Although the court's interpretation may seem to leave an odd gap in coverage, I think it is correct. In Sutton v. United Air Lines, Inc., 527 U.S. 741 (1999), the Supreme Court concluded that, because the ADA uses the present indicative verb form in the term "substantially limits," it is "properly read as requiring that a person be presently -- not potentially or hypothetically -- substantially limited in order to demonstrate a disability." In this case, the statutory provision refers to "having such an impairment," so like, the language at issue in Sutton, it should be interpreted as applying solely to someone who currently has an impairment, and should not encompass someone who might have one in the future. This ADA language can be contrasted with the broader coverage of pregnancy discrimination under Title VII of the Civil Rights Act of 1964, which defines "because of sex" as including "because of or on the basis of pregnancy, childbirth, or related medical conditions." Since Title VII covers any discrimination "because of pregnancy" and not merely for "being pregnant," the statute is more readily interpreted to extend to potential pregnancy.
Notably, the ADA explicitly prohibits discrimination based on an individual's record of an impairment. If the ADA's prohibition against an individual who is regarded as having an impairment is interpreted to cover someone who might have an impairment in the future, then why does it not also cover someone who had an impairment in the past, i.e., a record of an impairment? If a distinct provision is required to cover past impairments, then a distinct provision should also be required to cover future impairments. Since no such provision exists, future impairments are not covered.
As suggested by Judge Scriven, discrimination based on someone's current status is fundamentally different from discrimination based on voluntary conduct that might lead to a particular status. Once an individual has already engaged in a particular act, it cannot be undone. In this regard, there is a sound reason to prohibit discrimination based on an individual's status even if it was the individual's own doing, but not to prohibit discrimination where the individual has it within his control to take steps to avoid a particular status.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.