Implications of Attacks on the ADA

Implications of Attacks on the ADA

The Braille MonitorJanuary/February

2002

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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.

States'

Rights

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.

Baby

Boomers

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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