What's happening to our ADA?
By Mary Johnson
People with disabilities continue to have as high an unemployment rate as they ever did -- seven out of 10 people looking for work never get it, even though it's been almost a decade since the law's employment provisions took effect.
Instead of the ADA changing the way U.S. companies do business,our federal courts are trying to changing the law -- whittling it down, reining it in, eviscerating it. In coming months, the ADA as envisioned by the 1990 U. S. Congress that passed it into law may become not much more than an empty shell.
What happened to the Americans with Disabilities Act that the disability rights movement was so proud of?
Legal observers worry most about what they call the "fallout" from last February's Supreme Court ruling in the Garrett case that state employees could not use Title I of the ADA to sue their state employer for money damages in federal court.
The law's entire Title 2, requiring nondiscrimination on the part of state and local governments, is at risk as a result of the Garrett decision, they say.
Ironically, one of the disability rights movement's biggest ADA wins in the Supreme Court came in a Title 2 ADA case -- Olmstead v. L.C., decided in June, 1999 -- in which the Supreme Court said that people with disabilities have a right to receive services in the most integrated, community-based setting appropriate to their needs.
As a result of the ruling, many states, pressed by ADAPT activists and others, have begun to move money from institutions and nursing homes into in-home services.
"So much good has happened since the Olmstead decision," says Harvard Law School's Sam Bagenstos. "It would be terrible if that were cut off in its tracks." But he and others say there's a real risk of that if the Supreme Court takes a Title 2 case testing the constitutionality of the law. And those we talked to say it's only a matter of time before that happens.
A group of conservative judges and attorneys -- referred to as "federalist" -- will not be happy until they win a Supreme Court case saying the law was an unconstitutional over-reach of Congress's power. In the Garrett decision, the Court did say that -- but in only a narrow sense -- related only to the law's Title I, and involving only state employees.
Courts are going after the ADA's predecessor as well. The 8th Circuit Court of Appeals (covering the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska and North and South Dakota) ruled recently that Section 504 of the Rehabilitation Act was unconstitutional, based on the same reasoning. That they later rescinded the decision does not mean that opponents of disability rights have relented.
While constitutionality issues pose the biggest threat to the ADA, the law's reach is slowing being curtailed by a series of cases which restrict who is "eligible" for the law's protections.
In June, 1999, ruling in the cases of Hallie Kirkingberg, Vaughn Murphy and twin sisters Karen Sutton and Kimberly Hinton (referred to collectively as the Sutton decision), the Supreme Court said that people whose "impairments can be alleviated by medication, glasses or other devices are generally not disabled and so do not come under the law's protection against employment discrimination," as the New York Times's Linda Greenhouse put it.
Ella Williams' lawsuit, heard by the Court Nov. 7, also turned into a case about who the ADA was intended for. Toyota says that Williams, who got carpal tunnel syndrome from working at the plant, has no right to the ADA's protections because she also is not one of The Truly Disabled -- the term "Truly Disabled" being one that conservative justices have been using for some time, and which Toyota used in its argument.
On Jan. 8. Ella Williams lost her case before the Supreme Court; the court unanimously agreed with Toyota. (Professor Ruth O'Brien says Ella Williams and others like her are caught up in the Supreme Court's Catch-22. Read that story online at http://www.raggededgemagazine.com/extra/obrienwilliams012802.htm)
The Williams case is just another "in a line of cases where the Supreme Court has constricted the scope of coverage under the ADA," says Georgetown University Law School's Chai Feldblum. "When Congress passed the ADA it intended to cover people with a range of medical conditions, including things like carpal tunnel syndrome," she insisted. "The hornet's nest Ella Williams has gotten caught up in has to do the fact that the ADA's definitions are vulnerable to restrictive readings" -- and the court has done that over and over.
"What the courts have said is that because a person's 'impairment' does not 'substantially limit' enough of a 'major life activity,' then they're not disabled under the law.
"It's an absurd way to apply a civil rights law," says Feldblum, "but it's the reality of where we are today."
During the oral arguments in the Williams case, Justice Sandra Day O'Connor insisted that the ADA law was supposed to focus on the "wheelchair bound," not "carpal tunnel syndrome or bad backs!"
O'Connor "clearly misunderstands the intent of the statute; she has a paternalistic, stereotypical perspective," says Ohio State University's Ruth Colker. Perhaps O'Connor intentionally misunderstands the law, Colker suggests.
The Justices' interpretation of who's "disabled" is cutting "large numbers of people with significant disabilities out of the law's protection in a way the people who wrote the law would never have dreamed would happen," says Fordham University law professor Matthew Diller.
"Everyone working on the ADA in Congress envisioned a much larger group" of people than the Supreme Court sees as being covered by the law, Bagenstos agreed. But if the Supreme Court majority sticks to what Toyota is calling the "Truly Disabled," the result "will be far worse than the Sutton decision," says Bagenstos.
Colker says O'Connor's use of "wheelchair bound" is no different than if she were to refer to women as "girls." But O'Connor's language is just the tip of the iceberg. The real problem is what Colker calls "judicial backlash": "the business community has free rein," she says.
"We usually have a system of checks and balances," says Colker, who holds the Constitutional Law chair at Ohio State University School of Law. "If the legislature is conservative, the courts are liberal.
"But right now all three branches of government -- executive, legislative and judicial -- are tilted in the same direction -- to the right. The legislative branch has resisted revisiting the ADA; we have no backstop. The business community has a completely free wheel to take an anti-employee perspective." She calls it "a one-way ratchet."
A well funded and active group of employers' attorneys "is bent on limiting protections offered by the ADA," says Bagenstos. And while disability rights organizations have been involved in these cases, their financial resources cannot begin to match the deep pockets of the legal community that represents the nation's employers. The Bush administration, too, has consistently backed business at the expense of the disabled worker. "In case after case, the Bush Administration has filed briefs taking the side against people with disabilities," says Bagenstos. The president "has a lot of explaining to do if he want's to say he's on the side of people with disabilities."
Although hopeful of wins in the cases now before the court, Bagenstos concedes that "the trend is very bad. The Supreme Court is not generally ruling for ADA plaintiffs." The lower courts are even worse: "Federal district court judges just want to get [disability employment cases] off the dockets as quickly as possible."
The Supreme Court's conservative five-justice majority -- William Rehnquist, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas -- "have a real distaste for civil rights statutes, and tend to read them very narrowly -- and in a way that's helpful to defendants" -- that is, employers, says Bagenstos. The justices "are concerned with protecting states against Congress's over-reaching and a kind of business laissez-faire attitude.
"The ADA is an enormous challenge to that ideology."
Mary Johnson is Editor of Ragged Edge magazine.
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