The Disabilities Act covers all of us The Americans with Disabilities Act is a civil rights law. Like our other civil rights laws, it was meant to cover all of us. Posted Sept. 13, 1999
That's what Professor Robert L. Burgdorf, Jr. says. And he should know. He drafted the original bill that became the law.
Burgdorf, now a law school professor, says the law was not set up to protect only a small group called "the disabled."
"The ADA is a mandate for equality," says Burgdorf. Any person who's discriminated against by an employer because of a real disability -- or because the employer regards the person as being disabled, whether they are or not -- should be entitled to the law's protection.
The Civil Rights Act of 1964 doesn't just protect blacks. Blacks were the impetus for its passage. They were the group most in need of its protections. But you needn't be black to benefit from the Civil Rights Act, Burgdorf points out.
The Civil Rights Act protects people from race-based discrimination, whether the race is Hispanic or African-American or Irish.
Only a minority of Americans ever face racial discrimination. Only a minority of us will ever be discriminated against on the job because of something related to disability, like Carolyn Cleveland was.
Cleveland had a stroke, but recuperated and went back to work. She asked for some changes in her job, but her employer refused. She tried to work anyway, but without the accommodations she needed, she couldn't do the job very well. Her employer fired her. Cleveland sued, claiming disability discrimination under the ADA. Cleveland's case is one of five now being decided by the Supreme Court.
Congress passed the ADA as a civil rights law, not as some new sort of benefits legislation, intended to benefit only those who could meet some eligibility standard, Burgdorf said. It's not about increasing or decreasing the "rolls of the disabled," as news analysts commonly suggest.
There's a misconception that there are "two distinct groups in society -- those with disabilities and those without -- and that it's possible to have a list of all those who have disabilities," says Burgdorf. That's simply not reality, he says.
"People vary across a whole spectrum of infinitely small gradations of ability with regard to any given function," he says. The importance of any functional skill varies immensely according to the situation: a computer programmer doesn't need vision the way a bus driver does. A professor doesn't need to be able to move the way a firefighter does.
"The focus of the Act was -- and should be -- on eliminating employers' practices that make people unnecessarily different," says Burgdorf.
Having to "prove you're disabled" in order to get the benefit of the law -- that's making it into a 'benefits' law, not a 'civil rights' law.
What makes anyone "eligible" for protection under the ADA is the same thing that makes any of us "eligible" for protection under the laws against age discrimination, or gender discrimination: We're "eligible" to use the law once we run into discrimination. Lower court ADA rulings, said Supreme Court Justice Stephen G. Breyer in oral arguments last month, seem to be trying to exclude "the very people the statute was aimed at."
Where the courts have gone wrong, says Burgdorf, is to try to first establish some "group" for whom the ADA offers protection. That's simply not how civil rights laws work in this country.
For nearly a decade, enemies of the Act have succeeded in making people believe the ADA is vague. But when we look at it as the civil rights law it is -- and see it in terms of what civil rights laws in the U. S. are designed to do, the vagueness disappears. Civil rights laws cover all of us. Their protections "kick in" only when one of us faces an act of discrimination on the basis of something -- race, sex, creed, age -- and yes, disability.
Most of us won't use any of our civil rights laws -- federal, state , or local -- because only a small number of us ever actually face discrimination. But if we do, no matter who we are, we're protected. That's exactly what Congress intended with the ADA's protection against disability discrimination, says Burgdorf. We know this is what Congress intended, because we see they made it a civil rights law, not a benefits law.
"Like other civil rights laws," says Burgdorf, "the ADA prohibits discrimination and mandates that Americans be accorded equality in pursuing jobs, goods, services and other opportunities."
People grouse that the "reasonable accommodation" required under the law amounts to "special privileges" for people with disabilities, says Burgdorf. But they're wrong.
"As Congress understood when it created the requirement, the rationale for requiring reasonable accommodation was not 'special treatment'. It was a reflection of the fact that employers routinely plan for and accommodate the expected needs of employees in general -- but that most facilities, systems, practices and furnishings have been designed without taking into account the needs of employees (and potential employees) who have disabilities.
"To allow these employees to participate in the work place," he added, the ADA says "employers must adjust the way they have 'always done things.'
"The ADA makes clear that equal treatment is not synonymous with identical treatment," Burgdorf points out. "Letting every employee have an identical opportunity to use a restroom located up a flight of stairs may be 'identical' treatment -- but it is hardly equal treatment for a worker who uses a wheelchair.
What the ADA calls for -- re- tooling work so that the "essential functions of the job" are defined and that people are allowed to use a range of strategies and technologies to carry out those functions -- is such a far-reaching, egalitarian idea that we aren't ready, it seems, to grasp its full implication: that the Americans with Disabilities Act is really the most egalitarian of laws. It's aimed at creating an accessible society --for all of us.
Courts have not really accepted the premises of the ADA.