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Issue 3
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States pass laws to undo Supreme Court 'Garrett' damage
After the U. S. Supreme Court
hacked away Americans with Disabilities Act protections for state workers, activists began moving to ensure protections on state fronts.
On May 22, Minnesota Gov. Jesse Ventura signed into law a bill designed to undo the damage of the Garrett decision.
"An employee, former employee, or prospective employee of the state who is aggrieved by the state's violation of the Americans with Disabilities Act of 1990," reads the law, "may bring a civil action against the state in any court . . . "
Minnesota is just one of several states who acted in wake of the Garrett decision by passing what's called a "sovereign immunity waiver" act. California has one in the works as well.
The Garrett decision said that states were "immune" from the ADA; these laws say, in effect, "no, we're not above federal law, and if we break the law, we can be sued."
Two weeks after the U.S. Supreme Court stripped disabled state workers in February of their right to sue for damages under the ADA, two Missouri state legislators moved to restore those rights. Alabama did the same.
Missouri Sen. Betty Sims (R-Ladue) and Rep. Chuck Graham (D-Columbia) both introduced bills that would permit disability antidiscrimination suits by state workers to be filed in state court. Graham is a wheelchair user. He told reporters he was "in shock" at the Garrett decision . "Discrimination is wrong whether you're a state employee or a private employee," he said.
"In essence, if you work at Wendy's or McDonald's, you have a right you don't have if you work for the state now because of a 5-4 decision by the United States Supreme Court," added Missouri Attorney General Jay Nixon, who's also pushing the legislation.
In Alabama, SB 435, The Alabamians with Disabilities Act, introduced in March by Democratic state Sen. Wendell Mitchell, would have much the same effect.
Across the nation, state disability advocates have pushed through strong state laws that undo the damage inflicted by the Court in the 1999 Sutton decision, by explicitly allowing people whose disabilities are "mitigated" by medication or prostheses, for example, to be protected.
In January, largely unnoticed by anti-ADA forces, a new antidiscrimination law took effect in California. Named the Prudence K. Poppink Act after a popular judge, the law was passed specifically to counteract the effects of the Sutton decision.
It "establishes California protections as "intentionally stronger" than those of the ADA. It specifically clarifies that "disability" covers conditions that some courts have decided aren't covered by the ADA -- HIV infection, AIDS, hepatitis, epilepsy, seizure disorders, diabetes, clinical depression, bipolar disorder and heart disease. The ADA defines a disability as an impairment that "substantially limits a major life activity"; the new California law does not include the word "substantially."
"This new definition is going to reverse the trend we've seen in disability cases of employers being very successful in getting summary judgments," California attorney David Kadue told the Los Angeles Times.
"Summary judgments" have plagued ADA cases nationwide for years. In a "summary judgment," a judge stops a case before it even gets started, telling plaintiffs they simply aren't "disabled" as the ADA defines it, and that they therefore don't have a right to use the law, period.
Under the new California law, "it's going to be much more difficult to get cases dismissed" this way, says Kadue.
Last summer, Rhode Island disability activists got Rhode Island's civil rights law amended to allow persons with disabilities who use medication or assistive technology to "mitigate" the limitations of their disabilities to continue to be protected under the law. "At least in Rhode Island ADA has been restored to its original potential," says Rhode Island disability activist Bob Cooper.
Massachusetts' Supreme Judicial Court is currently deciding whether the state's antidiscrimination law is broader than the ADA after Sutton. The question has arisen in the case of Richard Dahill.
Dahill has worn hearing aids since childhood, and can hear pretty well with them. Yet after finishing at the Boston Police Academy, the Boston Police Department decided he was "too disabled" to become an officer.
Dahill sued, using both the state employment discrimination law and the Americans with Disabilities Act. The Police Department has now argued that Massachusetts' anti-discrimination law, just like the ADA, does not apply to people like Dahill, whose disabilities are "subject to correction with devices or medication." Federal Judge Douglas P. Woodlock is not so sure. He has asked the Massachusetts Supreme Judicial Court to decide that matter.
Thanks to Sally Knapp for research
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