Disability Discrimination

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Approximately 43 million people in the United States are physically or mentally disabled. Like individuals of various races, religions, genders, and national origins, individuals with physical or mental limitations historically have faced discrimination in the forms of exclusion from mainstream society; intentional and unintentional segregation; unequal or inferior services, benefits, or activities; and screening criteria that do not correlate with actual ability. Legal commentators have noted that the discrimination against disabled persons differs from other forms of discrimination in that a rational basis for treating members of other excluded groups differently rarely exists, whereas a person's disability might hinder his or her abilities and might provide a rational basis for different treatment. Thus, the mere fact that an individual with a disability is treated differently is insufficient for a finding of illegal discrimination.

Another frequently noted difference between discrimination based on disability and discrimination based on race, color, religion, gender, and national origin is the attitude behind the discrimination. For example, discrimination based on race tends to be rooted in hostility toward a different race. On the other hand, discrimination based on disability is often caused by discomfort and pity, or misguided compassion that materializes as paternalistic and patronizing behavior. Other times, discrimination against disabled persons is the result of "benign neglect" and is "primarily the result of apathetic attitudes rather than affirmative animus" (Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661 [1985]). For example, a restaurant owner who fails to provide a wheelchair ramp to the restaurant's entrance is more likely to be guilty of failing to consider the needs of patrons than of expressing a specific dislike of wheelchair users.

Whatever its roots, discrimination impedes those with disabilities from obtaining jobs that they are qualified to perform; access to some buildings and modes of transportation; and the independence and dignity that nondisabled people take for granted. The U.S. Constitution provides little relief. Courts have held that mentally and physically disabled persons do not fall within a suspect or quasi-suspect class (i.e., classes subjected to a history of purposeful unequal treatment or political powerlessness). This means that under the Constitution's equal protection clause, courts review government action affecting disabled people without the heightened or strict scrutiny afforded suspect or quasi-suspect classes formed by race or religion.

This lack of distinct constitutional protection has resulted in legislative action. Following a concerted lobbying effort by and on behalf of individuals with disabilities, Congress in the late 1960s and early 1970s passed the first federal laws designed to protect disabled persons. Lobbying continued when these laws proved to be inadequate owing to their limited coverage. Then, in 1990, Congress passed the much-heralded Americans with Disabilities Act (ADA) (42 U.S.C.A. §§ 12101–12213), legislation with a much broader application and a fair amount of controversy over the relative cost of its effectiveness.

Rehabilitation Act of 1973

The Rehabilitation Act of 1973 (19 U.S.C.A. §§ 791, 793, 794) prohibits disability discrimination by federal agencies, federal contractors, and other recipients of federal financial assistance. Types of prohibited discrimination include employment; education; building accessibility; and health, welfare, and social services. Courts have held that private individuals may file actions under the Rehabilitation Act against federal employers or against recipients of federal financial assistance; the action need not be brought by a government entity. A plaintiff who proves that a federal employer discriminated intentionally in violation of the Rehabilitation Act may receive compensatory and punitive damages.

What constitutes a disability under the Rehabilitation Act is often the source of controversy. Blindness, deafness, diabetes, cardiac problems, mobility impairments, and chronic fatigue syndrome have been recognized as physical impairments. The U.S. Supreme Court has held that tuberculosis, a contagious disease, is a physical impairment (School Board v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 [1987]). Numerous courts have followed the logic in Arline in holding that individuals who have AIDS or who have tested positive for HIV, the virus that causes AIDS, are physically impaired. Courts also have held that alcoholism, anxiety panic disorder, and post-traumatic stress disorder are impairments under the Rehabilitation Act.

Prior to the enactment of the Americans with Disabilities Act, section 504 of the Rehabilitation Act was the principal federal prohibition of discrimination on the basis of disability. Even with the ADA, the Rehabilitation Act remains an important protection for those with disabilities. The ADA expressly excludes from its coverage protection against discriminatory acts by the federal government, so the Rehabilitation Act provides the only private cause of action for disability discrimination by federal employers and agencies. The Rehabilitation Act also remains an alternative means of remedying discrimination even when a plaintiff concurrently invokes ADA protection.

Individuals with Disabilities Education Act

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400–1485) requires states to provide a free, appropriate public education to children who are disabled. Formerly known as the Education of the Handicapped Act or the Education for All Handicapped Children Act, the law was established in 1975 in response to studies showing that more than half of all disabled children were receiving an inappropriate public education, and about one-eighth of those children were simply excluded from public education altogether.

IDEA requires states seeking federal financial assistance for education to develop plans ensuring disabled children a free education that meets their needs. IDEA covers children ages three to 21 who have educational disabilities—in other words, mental retardation; hearing, speech, or language impairments; visual impairments; serious emotional disturbances; orthopedic impairments; autism; traumatic brain injuries; and specific learning disabilities—and as a result of such conditions require special education and related services such as transportation to and from school. The act does not, under normal circumstances, cover a child who is nearsighted and needs glasses, or a child who walks with a leg brace; many children with minor disabilities can be educated without special attention.

Each child covered by IDEA is entitled to have an individualized educational program, or IEP, developed jointly by the child's parents and school personnel. The IEP describes the child's abilities and needs, and outlines educational placement and services that will address the listed needs. IDEA contains procedural safeguards designed to ensure that parents can participate in the IEP process and have methods of recourse if they disagree with educators about their child's education.

Finally, IDEA supports the integration of disabled children by requiring that they receive their education in the least restrictive environment. The goal of this requirement is to keep children with disabilities in regular public school classrooms to the extent possible. Only when a satisfactory education cannot be achieved in regular classes, even with the use of supplementary aids and services, may a disabled child be removed from regular classes. In many cases, children with disabilities are mainstreamed—placed in a regular educational setting—for part of their school day, and removed to a special-needs setting for the other part. Depending on the disability, children may be mainstreamed into certain academic classes or simply during lunch, during study hall, or on the school bus.

Architectural Barriers Act

The Architectural Barriers Act (ABA) (42 U.S.C.A. §§ 4151–4157) requires that federally owned, leased, or financed buildings be accessible to disabled persons. Originally enacted in 1968, this law requires each of four federal agencies—the department of housing and urban development, the department of defense, the general services administration, and the Postal Service—to promulgate design, construction, and alteration standards for buildings within its jurisdiction.

The coverage, and thus the effectiveness, of the ABA is limited. The act encompasses the subway system in Washington, D.C., as well as (1) structures that the federal government constructs or alters; (2) structures that the federal government leases; and (3) structures that depend on federal grants or loans for their design, construction, or alteration. If a federal agency is housed in a building that was constructed by the federal government prior to the ABA's original enactment date in 1968, and that building is not altered, it need not be accessible to disabled individuals under the ABA. Further, when structures covered by the ABA are altered, only the altered portion need be made accessible. Thus, an altered wing of a building may have elevators, wheelchair ramps, and accessible rest rooms, whereas stairs in front of the building's entrance render the building inaccessible to wheelchair users. Perhaps the most obvious shortcoming of the ABA's effectiveness is that it covers only buildings that are owned, leased, or financed by the U.S. government. Even after the ABA's enactment, individuals with disabilities remained challenged by the many inaccessible buildings not covered under it.

Americans with Disabilities Act

Despite the efforts of Congress, until 1990, no federal law outlawed most of the disability discrimination by employers, owners of places of public accommodation, and program administrators. During the late 1980s, two-thirds of employable, working-age, disabled persons in the United States had a job, and many of those who were employed held a job far below their actual capabilities. In the United States in 1990, more than 8 million persons with disabilities who wanted to work were unable to find jobs and were forced to live on welfare and other government subsidies funded by taxpayers.

Disabled individuals faced more obstacles when it came to transportation. Because disabilities often prevent people from driving cars, many with disabilities must rely on buses, trains, and subways. As of 1990, very few public modes of transportation were accessible to those with disabilities. That same year, Congress passed the Americans with Disabilities Act in the hopes of alleviating day-to-day problems faced by those with disabilities.

Employment Discrimination and the ADA Titles I and II of the ADA prohibit employers, employment agencies, labor organizations, and joint labor-management committees, in the private sector and in state and local governments, from discriminating on the basis of disability. At the ADA's effective date in July 1992, the act covered private employers with 25 or more employees; since July 1994, the act has covered private employers with 15 or more employees. All state and local government employers are covered, regardless of their number of employees.

The equal employment opportunity commission (EEOC) is the federal agency charged with overseeing the employment-discrimination provisions of the ADA. That agency administers complaints and enforces the ADA. The act also provides that its powers, remedies, and procedures may be invoked by the EEOC, the U.S. attorney general, and any person alleging illegal discrimination pursuant to the ADA or its underlying regulations. Any party seeking redress for ADA-prohibited discrimination must exhaust certain administrative remedies before instituting a lawsuit.

The employment discrimination outlawed by the ADA may take one of several forms explicitly defined by the act: (1) limiting, segregating, or classifying job applicants or employees in a way that adversely affects the status or opportunities of a disabled individual; (2) entering into a contract or business arrangement that has the effect of discriminating against a disabled individual; (3) implementing administrative procedures or criteria that have the effect of discriminating against a disabled individual; (4) denying a disabled person equal jobs or benefits; (5) failing to make reasonable accommodations to allow those with disabilities to perform their job in the workplace; (6) using criteria that screen, or tend to screen, disabled individuals from the workplace; and (7) administering employment tests for the purpose, or partial purpose, of measuring a job applicant's disabilities. In determining whether illegal discrimination has occurred under the ADA, it is irrelevant that the employer did not intend to discriminate. But discriminatory actions are permissible if they are job related and necessary for the business, and if the required job performance cannot be accomplished with reasonable accommodation.

Reasonable accommodation can be modifications or adjustments to the job application process, to the work environment, or to the manner or circumstances under which the job is performed. The ADA does not require an employer to reasonably accommodate an employee who does not make his or her disability known to the employer, and unless it is obvious, the employer may legally require documented proof of a disability before accommodating it. Examples of reasonable accommodation include making work areas, and nonwork areas such as lunch rooms and rest rooms, accessible; modifying work schedules; modifying equipment such as computers and desks; and providing interpreters for blind or deaf workers. An accommodation that imposes an undue hardship, causing the employer significant difficulty or expense, is not a reasonable accommodation. An accommodation that fundamentally alters the business is also not reasonable. For example, a nightclub would not be forced to provide bright lighting for a visually impaired employee, because bright lighting would significantly alter the nightclub's business. An employer is not responsible for providing personal items of accommodation such as eyeglasses, leg braces, and prostheses, nor is an employer responsible for accommodating current users of illegal drugs. But the ADA does protect rehabilitated drug users and rehabilitated and nonrehabilitated alcoholics,

provided that the employees do not threaten the employer's property or the health and safety of others in the workplace. Whether an accommodation is reasonable is, under the ADA, determined on a case-by-case basis, considering all relevant factors including hardship and cost to the employer.

The ADA does not require employers to accommodate every individual with a disability. Only qualified individuals with disabilities—disabled individuals who can perform, with or without reasonable accommodation, the job's essential functions—are protected from discrimination. Two factors are involved in the determination of whether a disabled individual is qualified. First, the employer must determine whether the individual satisfies the job prerequisites at the time of the hiring decision. This determination should not be based on speculative fears that the employee will not be able to function on the job, or that the employer's insurance premiums will rise. Second, the employer must determine whether the individual can perform the job's essential functions with or without reasonable accommodation. The essential functions of a job are tasks that are fundamental as opposed to marginal. Written job descriptions are frequently considered relevant evidence of essential functions.

To ensure that employers do not consider a person's disability at the time of hiring, the ADA prohibits employers from inquiring about disabilities or conducting medical examinations of prospective employees before hiring them. It is illegal to ask questions about medical history, prior workers' compensation claims, and overall health before a hiring decision is made. The employer is permitted to inquire about the applicant's abilities as they relate to essential or nonessential job functions—although refusing to hire an applicant because of his or her inability to perform a nonessential job function is prohibited. Upon extending a job offer, the employer may require the prospective worker to submit to a medical examination, provided that all prospective workers face the same requirement. In fact, a job offer may be conditioned upon the results of the examination, and the employer may rescind the offer if the examination indicates that the prospective worker would pose a direct threat to health or safety in the workplace, or that he or she would not be able to perform the job's essential functions even with reasonable accommodation. The ADA does not consider tests for illegal drugs to be within its definition of a medical examination; therefore, before extending a job offer, employers may test applicants for illegal drugs—but not prescription drugs or alcohol. An employer may legally test for HIV only after an employment offer has been extended. Even then, the employer may not fire or refuse to hire an individual because of that person's HIV status, unless such discrimination is both related to the job and necessary for the business.

When an employer violates the ADA, the aggrieved party usually is entitled only to equitable relief, such as a court order requiring the construction of wheelchair ramps or the provision of voice-activated computers. Only when the employee shows intentional discrimination may compensatory or punitive damages be awarded. Where the dispute involves the provision of a reasonable accommodation, and the employer made good faith efforts to make reasonable accommodation, the court may not award money damages; it may award only equitable relief.

Public Accessibility and the ADA Title II of the ADA requires that state and local government programs and activities be accessible to those with disabilities. Title III of the ADA applies the same requirement to certain private entities that own, lease, or operate places of public accommodation: (1) hotels, motels, and certain other places of lodging; (2) restaurants, bars, and other establishments that serve food or drink; (3) theaters, stadiums, concert halls, and other places of exhibition or entertainment; (4) auditoriums, convention centers, and lecture halls; (5) retail or rental establishments such as grocery stores, bakeries, shopping centers, and hardware stores; (6) self-service laundries, dry cleaners, banks, hair salons, travel services, shoe repair services, gas stations, law offices, accounting offices, pharmacies, doctors' offices, hospitals, and other service establishments; (7) public transit stations and depots; (8) museums, libraries, and galleries; (9) parks, zoos, and other places of recreation; (10) private schools; (11) day care centers, homeless shelters, food banks, and other social-service establishments; and (12) health clubs, gymnasiums, bowling alleys, golf courses, and other places of exercise or recreation. The ADA does not limit its coverage to the size of the public accommodation; if a private entity fits into one of the twelve descriptive categories, it must comply with the ADA accessibility requirements. The ADA does exempt from its coverage some private clubs and religious entities.

When a private entity falls within a class of public accommodation, it must provide reasonable modifications in its practices, policies, or procedures, or auxiliary aids and services, for those with disabilities, unless such modifications would fundamentally alter the nature of the entity or would result in an undue burden of significant difficulty or expense. Title III requires only that those with disabilities be given equal opportunities to achieve the same results as nondisabled individuals. For example, a clothing store need not print price tags in braille so long as a sales clerk is available to read the price tags to a blind shopper. Auxiliary aids, such as closed-captioned televisions for hearingimpaired hotel guests, are required, but this provision is often flexible. Thus, the owner or operator of a public accommodation may often determine the type of auxiliary aid to assist the disabled individual, provided that the chosen aid is effective.

Title III also requires the owners and operators of public accommodation in existing facilities to remove structural, architectural, and communication barriers when such removal is "easily accomplishable and able to be carried out without much difficulty and expense" (42 U.S.C.A. § 12181(9)). To determine whether barrier removal is readily achievable, courts look at the nature and cost of the action needed; the number of people employed at the facility and its financial resources; the action's effect on the facility; and the size, nature, type, and financial resources of the covered entity. Under Title II, state and local governments must remove barriers unless the removal would cause a fundamental alteration to the program or activity, or unless it would cause the government entity an undue financial and administrative burden.

A private individual may enforce the provisions of Title III, as may the U.S. attorney general. To enforce the provisions of Title II, a private individual may file an administrative complaint with the appropriate federal agency (usually the agency that provides federal funding to the public entity that is the subject of the complaint) or the U.S. department of justice, or the individual may file a federal lawsuit.

On May 29, 2001, the U.S. Supreme Court ruled 7-2 that federal disability rights law entitled professional golfer Casey Martin to ride a golf cart among shots while competing in PGA Tour events, PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (U.S.Or., May 29, 2001) (NO. 00-24). In reaching its decision, the Court addressed two distinct legal issues, ruling that the PGA tour is a "public accommodation" subject to ADA requirements, and that under those requirements Martin's use of a cart was a "reasonable modification." The decision was the first high court case to interpret the nondiscrimination mandate of Title III of the ADA.

The ADA and Public Perception Many individuals with disabilities credit the ADA with helping them to overcome the special challenges that they face from day to day. From the visually impaired social worker who is able to take his licensing test in braille, to the wheelchair user who is able to park her car just a few yards from her office's entrance, the ADA has helped many disabled people to become fully functioning members of society. But not everyone heralds the act, particularly when the price of compliance outweighs the legislation's effectiveness. Business owners complain that they have to make their buildings accessible even when those buildings are never used by disabled individuals. Between 1990 and 1995, local governments within Orange County, Florida, spent more than $2 million on architectural changes to make buildings accessible. The city of Winter Park, Florida, spent approximately $35,000 to make a new tennis facility that would be accessible to the disabled, yet the facility's manager reported that only one disabled person used the building in the first year after it opened.

Other critics of the ADA contend that the law is draining administrative and legal resources. During the first three years following the effective date of the ADA's employment provisions, the EEOC reported a 25 percent increase in its workload owing to ADA-related complaints. About 20 percent of those complaints were found to be without merit. By the early 1990s, the act had done little to improve the employment rate for those with disabilities. According to figures by the National Organization on Disability, a private group, as of December 1993, 31 percent of working-age disabled people were employed, whereas in 1986, prior to the ADA's enactment, 33 percent were employed. More recent figures indicate that employment and opportunities for disabled persons are on the rise.

Some legal commentators argue that the act is new and evolving. As courts interpret the law and Congress fine-tunes it, the ADA's benefits will become clearer. Peter David Blanck, a fellow at the Annenberg Washington Program, has stated that people with disabilities are not the only beneficiaries of the ADA. Businesses have found a new market, and new technology developed to help those with disabilities often helps the nondisabled as well.

Restrictions on ADA Application

Defining Disability In Sutton v. United Airlines, 527 U.S. 471, 119 S.Ct 2139, 144 L.Ed.2d 450 (1999), the U.S. Supreme Court held that for the purposes of the Americans with Disabilities Act, whether a person has a disability is to be determined based on the person's condition when that person uses corrective measures. The case concerned two women who had been denied positions as airline pilots because they each had extremely poor vision when they were not wearing glasses. The Court held that because the women had perfect vision when wearing glasses, they were not disabled and thus not protected by the ADA. It stated that "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures, both positive and negative, must be taken into account when judging whether that person is substantially limited in a major life activity and thus disabled under the [ADA]." That is, to determine whether someone is disabled, ask whether her physical or mental impairment, when mitigated by medication or other corrective devices, substantially limits her ability to perform major life activities.

In Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (U.S., Jan 8, 2002) (NO. 00-1089), the high court further narrowed the standard for establishing that one has a disability covered under the ADA. In that case, Ella Williams, an assembly line worker in a Toyota automobile-manufacturing plant, developed severe carpal tunnel syndrome from her job. Her physician imposed limitations on her manual activities, disqualifying her from most of the assembly jobs in the plant. Toyota eventually accommodated her by assigning her to a lighter-duty unit but later required her to rotate to an additional job station, where she had to work at regular intervals with her hands and arms above shoulder height. Her disabling symptoms reappeared and worsened, but her request to be returned to her original accommodation was denied. She became unable to work and lost her job soon afterward. The court ruled that under the ADA, the inability to perform occupation-specific tasks does not necessarily mean that employee is substantially limited in performing a major life activity.

Damage Limitations In Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (U.S., Jun 17, 2002) (NO. 01-682), the U.S. Supreme Court declared that persons excluded by local governments from programs funded with federal dollars may not receive punitive damages, no matter how egregious the discrimination that they have suffered. In that case, Jeffrey Gorman, who was confined to a wheelchair, was arrested one night in Kansas City, Missouri, and transported in a city police van that did not have the right equipment to take him safely. He sustained serious injuries, which prevented him from further gainful employment. At trial, the jury learned that the police department had failed to comply with the Rehabilitation Act since its passage in 1973, and even worse, it had done nothing after Gorman was hurt to prevent further injuries. A federal appeals court upheld the jury's damages award of more than $2 million. Local officials appealed the punitive damages portion, about half the total award, to the U.S. Supreme Court, arguing that punitive damages for disability discrimination could bankrupt city governments. Several groups, including AARP, pointed out that in Gorman's case, and other instances of egregious, intentional discrimination, punitive damages serve the worthy goals of deterring illegal conduct and compensating victims for their unneeded suffering. The U.S. Supreme Court reversed in a decision reflecting that neither the Rehabilitation Act nor the ADA permits an award of punitive damages in cases of access to public services.

Eleventh Amendment Issues In University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (U.S.Ala., Feb 21, 2001) (NO. 99-1240), Respondents Garrett and Ash filed separate lawsuits against petitioners, Alabama state employers, seeking money damages under Title I of the ADA. In an opinion disposing of both cases, the District Court found that the ADA exceeds Congress's authority to abrogate the State's eleventh amendment immunity. The Eleventh Circuit reversed on the ground that the ADA validly abrogates such immunity. The U.S. Supreme Court held that suits in federal court by state employees to recover money damages by reason of the state's failure to comply with Title I of the ADA are barred by the Eleventh Amendment.

further readings

Jones, Nancy Lee. 2003. The Americans with Disabilities Act (ADA): Overview, Regulations, and Interpretations. New York: Novinka Books.

Gaskill, Ricca. 1994. Americans with Disabilities Act: An Analysis of Developments Relating to Disability Law. New York: Practising Law Institute.

Poston, Sarah. 1994. "Developments in Federal Disability Discrimination Law: An Emerging Resolution to the Section 504 Damages Issue." 1992/1993 Annual Survey of American Law 419.


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