Time to take back the ADA

by Harriet McBryde Johnson

Also see Crafting language to undo the damage by Robert Burgdorf, Jr.

Harriet McBryde Johnson, a lawyer in Charleston, South Carolina, has litigated ADA and Section 504 cases for 14 years -- and has been lobbying for them for over two decades
It's time for all of us who know the harsh impact of disability discrimination to get Congress to tell the Supreme Court that employers who discriminate based on impairments must justify their decisions in court.

I'll call him Mr. Green. A few years ago, he came to my law office and told me he was blind in one eye. I was surprised. He looked perfectly normal. When he said he drove trucks and did ultra-hazardous electrical work, I was even more surprised. I thought you'd need two good eyes for work like that.

Mr. Green explained that he was an infant when he lost vision in one eye. As he grew up, he adjusted; he could see just as well as anyone else. When he was a young man, the power company hired him for his strong back. He proved himself conscientious, dependable, and eager to learn. As he learned, he moved up. After 10 years as a lineman, he had a perfect safety record. No one worried about his bad eye, if they even knew about it. He never gave it any thought.

Then a new manager came in. Suddenly Mr. Green was off the line, off the truck, and on leave while the company decided what to do with him. If he couldn't be a lineman, he knew he'd have to go back to unskilled, low-paid labor.

I saw in him emotions I'd often felt. Pain. Frustration. Outrage Fear. Shock. All these feelings that come when you think you've gotten past some impairment and then some weird reaction from some person you have to deal with brings it back. Kaboom!

I told Mr. Green about the Americans with Disabilities Act. He looked hard at my wheelchair, my full-body decrepitude. "I'm not disabled," he said.

"Of course not. The law is for people who can do the job, but other people think they can't." In that meeting we learned what we had in common: stigma.

I proposed negotiating before filing charges. A state-of-the-art medical exam confirmed that Mr. Green's brain had adjusted to compensate for the visual deficit; he could indeed see as well as anyone else. There was no reason to remove him from the job he loved.

Armed with this report, I contacted management. They didn't have the audacity to assert that the man who they said was too disabled to do his job wasn't disabled enough to come under the ADA. Discussions centered on the real issue: Can Mr. Green do the job? Faced with a clear opinion from a respected specialist, the company put Mr. Green back to work. The ADA worked -- as it has in countless cases that are not reported in the statistics.

But if another new manager decides to take Mr. Green off the line tomorrow, I'd probably have to turn down his case. "You see," I'd say, "The Supreme Court says you could sue if your vision were bad, but since your vision is normal, the law doesn't cover you."

"But I can see. I can do the job. That's why they should go to court. It's not fair."

"No, it's not fair. But it's legal."

"What do I do now?"

"Take that low-paid job. It's the best you can do. They don't have to offer you anything, you know. Legally, they could just toss you out. You've got mortgage payments, kids in college. You'll have to adjust."

"I thought I was done with adjusting."

"No. You adjusted to your impairment. Now you've got to adjust to discrimination."

In three rulings on June 22, the U. S. Supreme Court ruled 7-2 that the ADA doesn't apply to people whose disabilities are corrected -- or "mitigated." "The determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment," wrote Justice Sandra Day O'Connor.

But they're wrong.

The ADA was intended to cover some people who function "normally" -- people like Mr. Green who've "adjusted," and people who use adaptive equipment or medication -- but who are falsely regarded as impaired. In 1990, Congress said so in the legislative history. Now we need them to say it again, louder, in the U. S. Code.

The Supremes missed the point, because, it seems, they think of people with disabilities as people who "need help." Sometimes, of course, we do need help. And there are laws that are supposed to help us: Social Security, vocational rehabilitation, special education.

But the ADA is about something else. It's about letting us help ourselves, by removing barriers and challenging stereotypes. It's about civil rights.

An ADA plaintiff should not have to prove that he or she needs help, or is personally disadvantaged. An ADA plaintiff should only have to show discrimination to be able to use the law.

Supreme Court Justice Ruth Ginzburg, a pioneer advocate of women's equality, seems especially mystified by the ADA. She says a broad definition of the "protected class" is inconsistent with legislative findings about people with disabilities as a "discrete and insular minority," subjected to intentional discrimination, relegated to poverty and political powerlessness. In her view, the law should be for a relatively small number of people (say the 50 million who have work-related limitations); Congress could not have intended to cover a huge percentage -- perhaps a majority -- of Americans.

Wrong. Justice Ginzburg doesn't understand that disability discrimination is a social evil, like race and sex discrimination. Six of her colleagues on the Court don't understand this, either.

In 1990, Congress concluded that disability discrimination is a pervasive social problem and chose to outlaw it, just as it had done with other forms of discrimination. The ADA's "Findings" section notes that disability discrimination is widespread -- that it isn't just an occasional idiosyncratic preference that affects just a few people.

Put another way: one employer might like my brown eyes; and another might dislike my Southern accent. But neither of these preferences on the part of some employer or other would justify a discrimination law. However, if prejudice were so pervasive that blue-eyed people or people with Southern accents were significantly disadvantaged, impoverished, and denied political power, a law would be in order.

The forerunner of this kind of thinking is the Civil Rights Act of 1964. Title VII of that law was enacted to address pervasive discrimination against women and racial minorities. Although responding to a social problem, the Civil Rights Act doesn't confer group benefits; it confers an individual right -- the right to sue if one is unjustifiably denied an opportunity because of race or sex.

Title VII plaintiffs do not need to prove that they personally are poor or powerless. Nor need they show they are "black enough" or "feminine enough." In fact, people of European ancestry may sue for race discrimination, and men for sex discrimination. To sue under the Civil Rights Act, one must show only that a personnel decision was unjustifiably based on race or sex. (Most, but not all, suits are brought by minority group members and women, because they are the ones most often discriminated against.) The law assumes that race and gender should generally be irrelevant in employment. The law attacks the basic tendency to divide humanity into arbitrary categories, favoring some and disfavoring others based on characteristics beyond our control. The coverage is appropriately broad, since this law is about "equal opportunity."

Of course, equal opportunity can only do so much for you; if you've been denied a decent education, a right to compete for jobs won't get you very far. Civil rights laws don't compensate us for past discrimination or make up for the impact of poverty and powerlessness on our ability to compete. They only remove barriers for those who are ready -- right now -- to join in the mainstream. Therefore, the first beneficiaries of civil rights law are usually those who are, generally, least disadvantaged. It may take several generations, and affirmative action, to enable the most disadvantaged to compete.

Those of us who confront discrimination in daily life may say "normal people" shouldn't "take advantage" of our ADA.

My first answer is that Mr. Green needs to work too.

But also, we need to understand the ADA isn't about letting Mr. Green -- or anyone -- "take advantage." Remember: Mr. Green has been told by an employer that he cannot do his job because of a physical impairment. He can do the job. He's not asking for any special help. Even if he could go out and get a job somewhere else, we should allow him to sue. If Mr. Green gets bogus standards thrown out, he will help create a fairer workplace for the next person.

With technology and adaptations of all sorts, any of us may find that our impairments do not really limit our lives. As that happens, we will need exactly the kind of protection from the irrational bolt from the blue that the Supreme Court is now denying to Mr. Green.

Any of us might confront these ADA defenses:

"Her breathing limitations are corrected. With a respirator, she gets all the oxygen she needs. We didn't fire her because of any limitations, but because the respirator-whoosh is annoying."

"We know he is not limited in any way so long as he takes his medications. We don't think it would be good PR to have someone on Prozac in a responsible position."

"Our application form only asks about impairments that don't limit major life activities. These are not ADA disabilities."

I hope we can get Congress to fix the law before we start facing scenarios like these, and before Mr. Green's employer realizes he's fair game and can now be sacked.

Some people in the disability community are saying that we shouldn't go after a quick fix in Congress. They say our next step should be to change public understanding of the ADA and disability; the problem with the ADA, they say, was that it was enacted ahead of public opinion.

I agree that public attitudes are a huge problem -- and that the reason the Supremes didn't "get it" was because our whole society doesn't "get it." However, I think we need a broad, strong civil rights law to create better public attitudes -- and not the other way around. History has shown that changing legal relationships does more to remove prejudice than any amount of media and rational discourse. It is exactly by "getting ahead of public opinion" that legal rights change political power -- and change individual lives.

A look at other civil rights laws is instructive. In 1964, the Civil Rights Act was way ahead of (white) public opinion, especially in the South. Legal and social apartheid was a way of life and seemed to many to be a law of nature. The ban on sex discrimination was so far out that it was actually written as a "poison pill" to kill the bill. After the law passed, it was resisted. But the law compelled changes in behavior, ending at least the most blatant forms of discrimination and segregation. Most Americans began to see minority group members and women in new roles -- as customers, clerks, coworkers, police officers, elected officials. Only then did attitudes shift in fundamental ways. The next two decades saw more attitudinal change than had been produced by 70 years of brilliant analysis and diligent "public information."

The argument that it's bad to let law get ahead of public opinion often focuses on Roe v. Wade. Because the public was unprepared for the court's legalization of abortion, the argument runs, we have had 25 years of bitter polarized debate.

Yes, sure. But we've also had 25 years of safe and legal abortion, and during those years -- whether we like it or not -- attitudes have shifted. If we'd waited for the public to accept the feminist paradigm on the nature of power and women's bodies, a great many women would have died.

If we decide to shift the disability paradigm before we go back to Congress, lots of Mr. Greens will get fired. Many of us hard-core disabled folks will face unexpected hurdles in getting our rights vindicated in court. We can't afford to wait.

If we do go back to Congress, what then? Yes, the Chamber of Commerce will be out in force with bared teeth. We'll have to face people with big bucks and lots of influence. The business lobby does want to roll back the ADA -- not as much as we want to keep it, of course, but as part of a broader agenda that also includes fighting unions, minimum wage increases, occupational safety, products liability and environmental regulations.

We can expect a tough fight, but I honestly think we will beat them. We've done it before, armed with little more than the truth. With the truth, we got the ADA passed in the first place -- and we've had the forces of oppression on the defensive ever since. When we passed the ADA, the business lobby fought hard to deny us the jury trial and legal damages in employment cases; they won Round I, in the original ADA, but just a year later, in coalition with women and other minorities, we won Round II with another Civil Rights Act.

Repeatedly they've come after the ADA (and before that, Section 504), in the guise of "regulatory reform" and "eliminating unfunded mandates"; killing the ADA as an "unfunded mandate" was part of the 1994 "Contract with America." Every time, we held them back. It is because we beat them in Congress that our enemies took the battle to the courts, a field we weren't occupying. (In the Olmstead case and the Kevorkian trial we've just made our first entry into this venue, and both times we've succeeded -- but that's another story.) With this record, I don't understand why some of our eloquent voices say we aren't ready to face "organized" opposition.

I wonder if our hesitation is a product of our oppression. Power is new to us; we tend not to recognize it in ourselves. When we have a victory, we tend to write it off as a fluke, or say the dominant forces gave it to us -- they weren't organized, they weren't paying attention. As oppressed people, we may be afraid to initiate confrontation. We may be more comfortable defending ourselves against attack -- when really we are a powerful force to be recognized.

Of course, it's possible I'm wrong. Maybe the "quick fix" won't be so quick. Maybe the lies about the "blind bus driver" and "wheelchair accessible stripper cages" will convince Congress this time. Maybe their money will outweigh our truth and their influence outweigh our convictions. Maybe we'll lose the legislative battle.

Maybe. But it's still a battle worth fighting.

First, I don't think we have much to lose. I don't follow the logic that seems to say that a fight to make the ADA stronger will provoke the opposition into killing it. The opposition is free to attack the ADA any time, regardless of what we do -- they've done it before. Even if we stay out of Congress, we may expect such attacks to recur. Newspapers are already calling on Congress to rewrite the ADA, citing the court decisions to argue that the law is well intended but too vague, too sweeping, too broad. In The New York Times, John Hockenberry joins these voices to propose a fundamentally different, much narrower, ADA. The court has given these attacks real legitimacy. Whether we want a legislative battle or not, folks, we can expect one.

Second, we have a lot to gain. By seizing the legislative initiative, we would reframe the public debate. The discussion of the "ADA problem" would include us from the beginning. Our media campaign would be more than "responsible citizens with opposing views"; we would be real newsmakers whose positions must be reported as such.

Moreover, if we frame the fight as a fight for Mr. Green's right to do the job he does well, we enlist millions of potential allies. After seven years in force, the ADA has benefited countless people like Mr. Green, people who are not-so-disabled and not-really-disabled. This time, we should work with the lawyers' lobbies and bring people like Mr. Green to the hearings. Their stories will illustrate what we've always said: that the ADA is about making a fairer society for all people. We would expose the business lobby's "divide and conquer" strategy for what it is.

If we fight for Mr. Green, we may not win, at least in the next Congressional session. It took several years and Anita Hill to get Congress to reverse some bad Supreme Court decisions on race and sex discrimination. However, by fighting, we keep a very important issue alive. By fighting, we have a chance to articulate to Congress and to the whole society our vision of what justice should be.

'Plaintiff can't use ADA,'
says Appellate Court,
citing Supreme Court rulings

Compton, Calif. police officer James Real cannot use the ADA, said a three-judge California appellate court in an Aug. 10 decision overturning a $1.4 million verdict in favor of the disabled policeman who had been forced to retire.

The three judges based their decision on June's Supreme Court rulings. Real, while unable to fulfill his duties as a patrolman, was not "limited in the major life activity of work" and therefore unable to claim protection under the ADA, they said.

Real was a Compton patrolman for 16 years before pain in his left knee led to arthroscopic surgery in 1989. He later returned to work, despite an inability to run. A 1992 car accident reinjured Real's knee, leaving the officer unable to perform many of his duties.

The city made him retire when the chief of police was unable to find a position for Real that did not require at least some of the activities Real was unable to do.

Real sued under the ADA, claiming the city did not make reasonable efforts to accommodate him, and a jury agreed -- awarding him $1.4 million.

Now, because of June's Supreme Court rulings, California's Second District Court of Appeals reversed the decision. Appellate Court judge Norman Epstein wrote, "Mr. Real is not a member of the class protected by the ADA."

"A Compton cop's bum knee does not entitle the officer to a special accommodation under the Americans with Disabilities Act," is how one news report put it.

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