Judges don't understand the ADA

Judges don't see the ADA as the civil rights law Congress mandated it to be, says Fordham University law professor Matther Diller.

An American Bar Association study of 1,200 employment lawsuits filed under the 1990 Americans with Disabilities Act found that plaintiffs lost their cases over 90 percent of the time.

Few were the frivolous or far-fetched lawsuits news reports claim. They involved the core issue the Americans with Disabilities Act was passed to address: people with medical conditions seeking some accommodation from an employer in order to continue working.

Now the U.S. Supreme Court has ruled on three of these cases. The verdict? If you have a disability that can be corrected by medicine or devices such as eyeglasses, you're not "disabled" within the meaning of the law, and you can't use the Americans with Disabilities Act.

The Supreme Court, like many lower courts in similar cases, seems to regard the ADA a kind of special benefit for a special class of people Congress singled out -- "the disabled." Judges are actually viewing the ADA not as the Congressional civil rights mandate it is, but as another piece of benefits legislation to which only a few -- "the disabled" -- are entitled, says Diller. In these lower court cases, people were being stopped from filing suits because judges think they don't fit what the judges think are the "real disabled" people.

A sample:

-- A law professor with a paralyzed left hand, arm and leg as the result of a stroke wasn't "disabled," since he continued to work: he wasn't entitled to use the ADA, said a district court (Redlich v. Albany Law School).

-- A woman with breast cancer was not "disabled," said the court, since she managed to continue working -- therefore she had no right to the law's protections, and thus couldn't request a "reasonable accommodation" under the ADA (Ellison v. Spectrum Software).

-- An employee with AIDS wasn't allowed to bring an ADA lawsuit challenging his dismissal because he'd gotten Social Security disability benefits: that was tantamount, said the court, to saying he "couldn't work." Thus he had no right to file an employment lawsuit, said the court (McNemar v. Disney Stores).

-- A plaintiff with a spastic colon aggravated by multiple sclerosis wasn't entitled to an accommodation that would permit her to arrive at her clerical job 20 minutes late -- she wasn't permitted to use the ADA, either, said the court, because her condition did not qualify as a "disability" (Hileman v. City of Dallas).

There are hundreds of other similar cases.

Courts have decided that people with cancer, multiple sclerosis, strokes, hemophilia, carpal tunnel syndrome, brain damage and back and arm injuries aren't really "disabled" In making such decisions, they're falling prey to the stereotype common that "being disabled means you can't work" -- a definitional legacy from benefits laws -- and not at all the concept under civil rights law (which protect everyone, says Robert Burgdorf, who helped draft the ADA. See article below).

The bottom line, says Diller, is that judges just don't believe civil rights are at stake in ADA cases. They see it as a way of "dispensing subsidies" to some special group. They see plaintiffs as making unreasonable demands on an employer instead of just looking for another job. "The courts have seized upon" the definition of disability as a way to stop cases and, in effect, shield an employer's conduct from scrutiny, says Diller.

Courts don't like the ADA's vision of equality, either -- the idea that things sometimes have to be done differently than "business as usual" in order to create a "level playing field" for a disabled worker. Although it's not affirmative action, the ADA's requirement of "reasonable accommodation" -- which means employers may have to structure a job differently than is typical in order for a disabled employee to do it -- is seen by the courts as much the same thing. "The courts have grown increasingly wary of policies based on this richer notion of equality," says Diller.

Although Congress passed the ADA as a civil rights law, Diller says there's no "social consensus" around what it means to be disabled, as there is around gender and race. But the problem isn't so much the lack of a clear understanding of who's disabled. The real problem, says Diller, is that the judicial landscape has changed from the time the Civil Rights Act passed, and judges are "decidedly inhospitable" to calls to civil rights protections.

With civil rights laws, says Diller, the focus is on the defendant: did the company discriminate? But with judges interpreting the ADA as a benefits law, this concept is turned on its head and plaintiffs are put on trial instead. Cases "are being stopped before the real core issue of discrimination is ever raised," says Diller, as judges lecture plaintiffs for being malcontents and whiners who simply make excuses for poor performance and try to get something they don't deserve.

Yet ADA plaintiffs are, in fact, "individuals struggling to do exactly what in other contexts society demands disabled people do": look for a job, rather than sitting home collecting benefits.

Judges' interpretations of the law, he says, are based on the very stereotypes the ADA was passed in order to change

The ADA's original author speaks out.


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