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Implications of Attacks on the ADA
From the Editor: I recently received the following note and article from Scott LaBarre, President of the NFB of Denver and an attorney who frequently does work involving the Americans with Disabilities Act. This is what he said:
The following article provides a nice summary of the overall effect of the ADA. It is by far the most difficult employment discrimination statute under which to operate. People know it's wrong to discriminate against others because of their gender or their race, but people do not automatically think of discrimination against the blind or disabled as wrong. They don't even conceive of it as discrimination. They would say: "It's obvious that a blind man can't work in a dangerous cheese factory," or "It's obvious that a blind man alone on a cruise ship is at risk in heavy seas." The article appeared in the Chicago Tribune on November 25, 2001.
Legal Tide Has Turned Against the Disabled in the Courts
by Lennard J. Davis
Lennard J. Davis is Professor and Head of the Department of English of the University of Illinois at Chicago.
Most Americans react to the idea of disability with good wishes and a silent prayer to the effect that "there but for the grace of God go I." With this level of detachment, few may have noticed a disturbing and seemingly ineluctable trend in which the courts have been whittling away at the provisions of the Americans With Disabilities Act, passed with much fanfare and hoopla in 1990 under Bob Dole's stewardship, George Bush Sr.'s imprimatur, and bipartisan Congressional support.
Ten years later it has been estimated that 95 percent of the cases brought before the courts under the provisions of that act have gone against people with disabilities.
The Supreme Court has been steadily hacking away at the provisions of the ADA. Two recent cases could end the effectiveness of that legislation. The first case is one in which an employer wants the right to determine whether the job that an employee may want is a danger to his or her health. Chevron withdrew the offer of a refinery job to a man because he tested positive for asymptomatic chronic hepatitis C. Chevron maintained that the man would be doing possible harm to himself by accepting the position.
While the ADA provides that an employer cannot discriminate against someone with a disability, Chevron asks that employers be allowed to discriminate to protect the person from possible harm.
In bringing this case, Chevron is appealing a decision of a federal appeals court in San Francisco that rejected "paternalistic rules that have often excluded disabled individuals from the workplace." If the case is decided in favor of Chevron, it will weaken the ADA by allowing employers, not employees, to decide health issues.
The second case could have even more profound consequences in dismantling the ADA. In Toyota vs. Williams, the auto company argues that Congress has defined disability too broadly. In this case an employee of the company had carpal tunnel syndrome that limited the use of her hands. She was able to perform her job perfectly well until she was transferred to a different task, which she could not perform.
Her employer claimed she is not disabled because, although she could not perform her new task, she could brush her teeth, pick up objects in her home, and so on. Toyota demands that those claiming coverage under the ADA must demonstrate that they are "severely restricted from using their hands to perform a broad range of basic functions needed to meet the essential demands of everyday life."
The ADA defines disability broadly as "a substantial limitation in one or more life activities." In addition, a person is considered to be in the protected class not only if he or she has a disability but also if the person is "regarded" as being a person with disabilities.
The latitude of this definition has had employers up in arms. They fear they will be beset with requests from their employees for accommodations and will be sued for violations of the act. This, they say, will reduce employers to poverty. However, recent estimates of small businesses calculate that accommodations cost, on average, less than $5,000, of which half can be made up by federal credits.
The Supreme Court, with its new activism, has decided previous cases so that states' rights predominate over federal protections in the area of disability. It has also ruled that people with correctable disabilities, such as hypertension and myopia, are not protected under the law, even if their employer discriminates against them for having such conditions. The net effect of these decisions has been to continue whittling away the protections designed by Congress for people with disabilities.
The lack of knowledge or interest in these developments on the part of non‑disabled people is part of a larger picture. We have created a firewall between them and us. While many white people have embraced the cause of people of color and while many straight people have taken up the cause of gay, lesbian, bisexual, and transgendered people, few have taken up the cause of people with disabilities.
Perhaps the reasons for this are telling. No whites will become black; few straights will become gay; but every person can become disabled. All it takes is the swerve of a car, the impact of a football tackle, or the tick of the clock to make this transformation. Christopher Reeve, one day Superman, next day a quadriplegic, is the most dramatic example of this quick‑change act.
Today's baby boomer generation is fast heading toward disability. The World Health Organization predicts that by 2020 there will be more than 690 million people older than sixty-five, in contrast with today's 380 million. Two‑thirds of the elderly will be in developing and underdeveloped nations.
The increase in the elderly population will cause a major change in the disease patterns of these countries. There will be increasing rates of cancer; kidney failure; eye diseases; diabetes; mental illness; and other chronic, degenerative illnesses such as cardiovascular disease.
Although identity politics is popular these days, what people fear is that disability is the identity one may become but that one didn't want. This is the silent threat that makes folks avoid the subject, act awkwardly around people with disabilities, and consequently avoid paying attention to the backlash against disability rights.
Even without the baby boomers 15 percent to 20 percent of people in the U.S. have disabilities. Add to this caregivers and family members, and about half of the population is dealing with disability. People with disabilities make up the largest physical minority in our country‑‑too large a group to ignore and too large a group to roll back the protections afforded to them.
We have to recognize that "them" is actually "us." If employers are concerned that the protected class is too large, they may have to reconsider their position as more people become disabled.
Effects of Time
Most people would be better off identifying with people with disabilities than fearing them. As you begin to notice your hearing going, your hands stiffening, your eyes in need of stronger glasses, you may well want to rethink what laws are being consigned to the dustbin of history. Would it be such a miscarriage of justice if all of us were protected from discrimination just as all of us are protected from voter fraud and unwarranted search and seizure?
It isn't necessarily bad to be disabled, but it is bad to be discriminated against, unemployed, poor, and blocked by bad laws, architecture, and communication.
One out of five people now living near you has a disability. They are your uncles and aunts, grandmothers and sisters. Pretty soon they'll be you. We need to think twice before we disregard the trend of the courts in eviscerating disability rights. To do so, we act literally at our own peril.
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