Lia S. Davis and brian east 2015-06-30 10:47:39
THE AMERICANS WITH DISABILITIES ACT TURNS 25 THIS MONTH. Its short history is one of great promise, significant achievements, disheartening resistance, and exciting opportunity. Here, we recount this history, not only to look back but also to press forward toward its underlying goal: an inclusive society where a disability does not limit where people go, what people do, or who they become. By all accounts, the ADA signing ceremony in July 1990 was filled with an atmosphere of euphoria and hope. In his remarks at the event, President George H.W. Bush invoked the fall of the Berlin Wall, declaring, “And now I sign legislation which takes a sledgehammer to another wall, one which has for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp.”1 He acknowledged the diversity of those involved in the law’s drafting, describing it as “a coalition in the finest spirit—a joining of Democrats and Republicans, of the legislative and the executive branches, of Federal and State agencies, of public officials and private citizens, of people with disabilities and without.” 2 The crowd brimmed with excitement as he told them, “We embrace you for your abilities and for your disabilities ... for your past courage and your future dreams.”3 Few there could have predicted what struggles the future might hold, for despite the ADA’s progress, retreat soon began, culminating years later in such restrictive judicial interpretations that Congress had to intervene a second time, giving yet another start to the most important civil rights legislation of the past quarter-century. Supreme Roadblocks. The ADA prohibits disability-based discrimination in employment, by governmental entities, in telecommunications, and by private businesses. Some of its changes have been transformative. Wheelchair ramps are a common sight; a free, nationwide relay system allows deaf individuals to make and receive telephone calls; thousands of bank ATMs can be accessed independently by people who are blind. In addition, the law now recognizes that unnecessary segregation is itself a form of discrimination, creating an opportunity for people with disabilities to receive services in their own home rather than in institutional settings. While exciting, these achievements are incomplete, and they were accomplished despite judicial roadblocks thwarting congressional intent and full enforcement. Nowhere was this more apparent than in the ADA’s Title I, covering employment. The ADA forbids outright discrimination in the workplace,4 and it requires employers to provide reasonable accommodations to people with disabilities5 in applying for jobs, performing them, and having equal access to benefits and opportunities.6 Courts, however, soon weakened its reach, as enforcement seemed to depend almost entirely on whether one was “disabled enough”— a question courts threatened to make an impossible burden. In 1999, the U.S. Supreme Court issued a trio of opinions, including Sutton v. United Air Lines, determining that disability had to be assessed in light of the beneficial effects of medication, prosthetic devices, or the body’s own natural compensating mechanisms.7 As MSNBC anchor John Hockenberry wrote in a New York Times editorial: The Court said that if a disability can be corrected or mitigated, employers can conclude that an impairment does not amount to a ‘substantial limitation.’ This is something of a revelation. ... By this definition the fact that I use a wheelchair to mitigate my paraplegia suggests I am not disabled. Someone should tell the doctors working on a cure for spinal cord injury they are wasting their time. The Supreme Court just beat them to it.8 In 2002, the Supreme Court further limited the ADA in Toyota Motor Mfg., Kentucky, Inc. v. Williams, which held that the disability definition must be “interpreted strictly to create a demanding standard for qualifying as disabled.”9 Sutton and Toyota had a huge impact on subsequent ADA enforcement. Conditions subject to mitigation, such as diabetes and epilepsy, were routinely found not to be disabilities.10 Further, conditions that are episodic or subject to remission, such as cancer, were likewise rejected as disabilities.11 And it was not just the Supreme Court that issued such decisions; lower courts did as well. These results were not commanded by the ADA’s statutory language, and they contradicted the ADA’s expressed statutory purposes, explicit legislative history, and clear enforcement regulations, as well as extensive prior legal interpretations. As a result, while employment-discrimination complaints generally increased during this period, ADA complaints dropped precipitously.12 Congressional Reinforcement. In 2008, in response to these judicial misinterpretations, Congress unanimously approved the ADA Amendments Act.13 President George W. Bush signed it on September 25, 2008, and it went into effect on January 1, 2009.14 Congress passed the legislation because it was “[d]issatisfied with courts’ and agencies’ interpretation of the ADA,”15 finding that “[i]n the years since its enactment, court cases and legal interpretations have left some individuals outside the scope of the act’s protections ... an interpretation we all agree needs correcting.”16 Congress observed that recent court cases “have chipped away at the protections of the ADA” in an “alarming” way and said that the ADAAA “will stop the erosion.”17 In enacting the ADAAA, Congress intended to refocus the ADA on issues of discrimination rather than on issues of standing. 18 The ADAAA requires that disability be construed as broadly as possible19 and be evaluated in its active state and without regard to mitigating measures.20 The ADAAA also aimed to expand the “regarded as” prong of the ADA, focusing such claims on whether the employer’s action occurred because of an impairment; the issue of major life activity and substantial limitation are no longer relevant in regarded-as cases.21 Overall, the ADAAA has resulted in much more expansive coverage for individuals with disabilities. Many courts have acknowledged that the ADAAA altered the legal landscape22 and extended the ADA’s construction23 and have correctly found that conditions such as diabetes, cancer, and depression are covered under the ADAAA.24 Pressing Ahead, Working Together. The ADA was the first comprehensive law protecting the civil rights of people with disabilities, empowering them in employment, public life, and civic engagement. Despite its advances, people with disabilities still face a higher-than-average unemployment rate.25 President George H.W. Bush acknowledged this challenge in his remarks at the act’s signing: “[M]any of our fellow citizens with disabilities are unemployed. They want to work, and they can work, and this is a tremendous pool of people ... who will bring to jobs diversity, loyalty, proven low turnover rate, and only one request: the chance to prove themselves.”26 History shows that the law’s full impact depends not only on its passage but also on its enforcement. Judges, lawyers, and law firms should lead the way in making sure that the ADA’s promise of an equal, inclusive society is fulfilled—one where people with disabilities can go where others go, do what others do, and become all they want to become. NOTES President George H.W. Bush, Remarks at the Signing of the Americans with Disabilities Act, www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html. Id. Id. See 42 U.S.C. § 12112(a). See 42 U.S.C. § 12112(b)(5). Feist v. Louisiana, 730 F.3d 450, 453 (5th Cir. 2013). Sutton v. United Air Lines, 527 U.S. 471 (1999). John Hockenberry, Disability Games, N.Y. Times (June 29, 1999). Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002). See, e.g., Greenburg v. Bellsouth Telecommc’ns, Inc., 498 F.3d 1258, 1264 (11th Cir. 2007); Todd v. Academy Corp., 57 F.Supp.2d 448 (S.D. Tex. 1999). See, e.g., Garrett v. Univ. of Ala., 507 F.3d 1306, 1315 (11th Cir. 2007). U.S. Equal Employment Opportunity Commission, Americans with Disabilities Act of 1990 (ADA) Charges (includes concurrent charges with Title VII, ADEA, and EPA) FY 1997–FY 2014, http://www.eeoc.gov/eeoc/statistics/enforcement/ada-charges.cfm. 154 CONG. REC. S8342 (daily ed. Sept. 11, 2008). See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. McCormick v. Verizon Maryland Inc., 2009 WL 2449886, at *10 (D. Md. Aug. 6, 2009). Statement of Rep. McKeon, 154 Cong. Rec. H8288 (Sep. 17, 2008). Statement of Rep. Ramstad, 154 Cong. Rec. H6071 (June 25, 2008). See 154 CONG. REC. S8344 (daily ed. Sept. 11, 2008). 42 U.S.C. § 12101(4)(A); 29 C.F.R. §1630.1(c)(4). 42 U.S.C. § 12101(4)(D); 29 C.F.R. §1630.2(j)(1)(vii) and 42 U.S.C. §12102(4)(E)(i); 29 C.F.R. §1630.2(j)(l)(vi). 42 U.S.C. § 12102(3)(A); 29 C.F.R. §§ 1630.2(g)(1)(iii), 1630.2(1)(1), 1630.2(j)(2). See, e.g., Norton v. Assisted Living Concepts, Inc., 786 F.Supp2d 1173, 1185 (E.D. Tex. 2011); Mercer v. Arbor E & T, LLC, 2013 WL 164107, at *12 (S.D. Tex. Jan. 15, 2013). See, e.g., Patton v. eCardio Diagnostics LLC, 793 F.Supp2d 964, 968 (S.D. Tex. 2011). Szarawara v. County of Montgomery, 2013 WL 3230691 at 3 (E.D. Pa. June 27, 2013); Norton v. Assisted Living Concepts, Inc., 786 F.Supp2d 1185–86 (E.D. Tex. 2011); Palacios v. Continental Airlines, Inc., 2013 WL 499866, at 4 (S.D. Tex. Feb. 11, 2013). Bureau of Labor Statistics, Persons with a Disability: Labor Force Characteristics Summary— 2013, http://www.bls.gov/news.release/disabl.nr0.htm. President Bush, Remarks at the Signing of the ADA. LIA S. DAVIS and BRIAN EAST represent Disability Rights Texas, a nonprofit legal protection and advocacy firm that safeguards the rights of individuals with disabilities in civil cases, often on a pro bono basis. Go to drtx.org for more information. These groups help bring justice to Texans with disabilities and provide invaluable resources on disability rights. Texas Department of Assistive and Rehabilitative Services With four divisions—including Rehabilitation Services, Blind Services, Early Childhood Intervention Services, and Disability Determination Services—DARS administers programs that ensure Texas is a state where adults and children with disabilities and developmental delays enjoy equal opportunities to live independent and productive lives. dars.state.tx.us Disability Rights Texas As the federally designated legal protection and advocacy agency for Texans with disabilities, this organization works to help people with disabilities exercise their rights under the law so that they may fully participate in society. disabilityrightstx.org Texas Department of Aging and Disability Services DADS aims to provide local communities with a comprehensive and easily accessible array of aging and disability services, support, and opportunities. The department’s responsibilities include developing and improving service options and protecting self-determination, consumer rights, and safety. dads.state.tx.us
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