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December 01, 2000

Disability Rights Today - Human Rights Magazine, Winter 2000

Disability Rights Today

How Far Have We Come?

By Leslie Francis and Anita Silvers

Writing two years after the passage of the 1964 Civil Rights Act, Jacobus tenBroek, professor of political science at the University of California at Berkeley and founding president of the National Federation of the Blind, observed that " . . . nothing could be more essential to personality, social existence, economic opportunity-in short, to individual well-being and integration into the life of the community-than . . . public approval, and the legal right to be abroad in the land" ("The Right to Live in the World: The Disabled in the Law of Torts," 54 Cal. L. Rev. 841 (1966)). When tenBroek penned these words, people with disabilities lacked the protection of a civil rights statute.

As tenBroek showed in powerful detail, they also lacked a wide range of protections at common law. For in 1966, Professor tenBroek had no legal recourse when he was arbitrarily denied carriage on a train or plane for which he had purchased a regular ticket. Nor did he have a legal remedy when restaurants declined to serve him or banks refused to let him deposit his money. He expected to be held the responsible party if, in traversing the university campus, he fell into any open pit left by a repair crew or was injured in a collision with a campus vehicle. In short, as tenBroek put it, he lacked the right to live in the world.

In the years since 1966, legal protections for people with disabilities have expanded in impressive fashion. In the United States alone, the intervening years have seen the enactment of the Architectural Barriers Act (1968), the Rehabilitation Act (1973), the Education for All Handicapped Children Act (1975), the Developmental Disabilities Assistance and Bill of Rights Act Amendments (1975), the Voting Accessibility for the Elderly and Handicapped Act (1984), the Air Carrier Access Act (1986), and, finally, the Americans with Disabilities Act (1990). International proclamations have followed this lead. The United Nations' General Assembly made a Declaration of the Rights of Disabled Persons in 1975 and, in 1993, issued the Standard Rules of the Equalization of Opportunities for People with Disabilities. In its 1994 White Paper on Social Policy, the European Commission of the European Union included a section entitled "Promoting the Social Integration of Disabled People." Canada included equal rights for people with disabilities in its Charter of Rights and Freedoms. Indeed, during this period efforts to establish constitutional or statutory disability rights succeeded in many nations.

This array of national and international law has brought great expectations and important achievements. In the United States, just in the week this article was written, legal action based on federal disability discrimination law achieved important opportunities for many people with disabilities who had been barred from some part of the social world. To the applause of Ryan Taylor's neighbors, U.S. District Judge David Russell allowed the nine-year-old, who uses a walker to mitigate the effects of cerebral palsy, to take the field with his soccer team despite the objections of the Lawton (Oklahoma) Youth Soccer Association, which leased its facilities from the Fort Sill Army Post. Meanwhile, in Madison, Wisconsin, a federal jury recommended $70,000 in compensation and $13 million in punitive damages for mentally retarded janitor Donald Perkl, who communicates with signs and pictures. The Equal Employment Opportunity Commission (EEOC) filed suit on Perkl's behalf after a pizza chain's district manager saw him sweeping the floor and ordered him fired because "We don't want those kinds of people working [here]." And in San Francisco one federal judge presided over the settlement of a suit brought by students with disabilities and the California Faculty Association against San Francisco State University, while another ordered Macy's West to give disabled shoppers full access to merchandise. (In both San Francisco cases, disability rights advocates of Oakland, California, represented the plaintiffs.)

A Jumbled Situation

Despite a stream of individual victories brought by acknowledgments of disability rights, the record of success in challenging disability discrimination in the United States is mixed. Recent decisions of the U.S. Supreme Court and the lower federal courts give reason for both encouragement and concern. A recent study suggests that the situation for people with disabilities in the law of torts has made limited progress since tenBroek wrote his path-breaking article twenty-five years ago. ( See A. Milani, "Living in the World: A New Look at the Disabled in the Law of Torts," 48 Cath. U. L. Rev. 323 (1999).) With respect to the Americans with Disability Act (ADA) itself, many critical issues remain unresolved, and the direction in which they are taken will be pivotal to determining whether the ADA can protect the civil rights of people with disabilities.

In enacting the ADA (42 U.S.C. § 12101 et seq. (1990)), Congress specified three major goals: eliminating arbitrary barriers faced by people with disabilities, ending inequality of opportunity, and reducing unnecessary dependency and unrealized productivity. While not necessarily incompatible, these aims do not always point in the same direction, and the strains among them have become increasingly significant as ADA interpretation has developed. For example, reducing dependency focuses on individuals who otherwise would be in need of custodial care or income support; ending inequality of opportunity, however, does not suggest such a narrowly targeted focus.

Unlike other civil rights statutes, the ADA defines a target group of protected persons. Only people with physical or mental impairments that "substantially limit" a major life activity, those with a history of such impairments, or those regarded as having such impairments may claim the protections of the ADA. Some conditions are specifically excluded: illegal drug use, certain features of gender identity such as homosexuality or transvestism, and compulsive behaviors such as gambling or pyromania. Those falling within the ADA may invoke three major areas of protection: equal employment opportunity in Title I, equality in the provision of public services in Title II, and equality in services and accommodations offered by private entities to the public in Title III. The ADA specifies that lawsuits alleging violations are allowed to be brought against state governments as well as private entities.

The gate-keeping function of the definition of disability has been especially prominent in actions brought under the employment discrimination title, the most frequent catalyst for ADA litigation. Recent judicial declarations about the threshold for protection may have created rather than cleared away confusion. This past Term, the Supreme Court addressed one central question in defining disability: Must reference to available corrective measures be made in determining whether an individual's physical or mental impairment substantially limits a major life activity? The Court ruled that myopic twin sisters Karen Sutton and Kimberly Hinton were not disabled for purposes of the ADA because with corrective lenses they had 20/20 vision, although they were too myopic to be global pilots for United Airlines because their uncorrected vision fell below 20/100 ( Sutton v. United Airlines, Inc., 1999 U.S. LEXIS 4371).

In its first ADA case ( Bragdon v. Abbott, 524 U.S. 624 (1998)), the Court construed asymptomatic HIV infection as a disability if it affected the major life activity of reproduction. The Sutton Court narrowed the ADA's focus to seriously disabled individuals, referring to one of Congress's goals in passing the ADA. The Sutton decision has provoked great concern for its potential to strip protection from people who are productive despite their impairments, thus potentially undermining another congressional goal, namely, equal opportunity. In practice, Sutton's impact may be harshest to people whose impairments are only intermittently or imperfectly corrected or correctable.

Sutton has been much criticized because it invokes a "medicalized" theory of disability, under which an individual's limitations are attributed to personal defects rather than to unjust and unreasonable social arrangements. In moving away from the understanding that disability rights protect against social wrongs rather than compensate for personal deficiencies, the Court has weakened the analogy between the ADA and other civil rights statutes-for other civil rights statutes protect people from social injustice to which their race, sex, and so on make them extraordinarily vulnerable; they do not confer a privileged status. Further, some commentators argue that genuine equality requires seeing negative and positive rights as inextricably connected and disability as broadly present throughout the community. If, instead, disability is identified with a relatively narrow class of dysfunctional people, the ADA may be resented for providing greater positive rights than other civil rights statutes-and conferring this privilege on "inadequate" individuals.

The Sutton decision may increase the importance of the third prong of the definition of disability, whereby individuals "regarded as" disabled also are protected-for, a plaintiff like Sutton might contend, employment policy that makes correctable myopia the occasion for loss of opportunity inherently regards myopic people as disabled. According to some lower court decisions, however, no one is "regarded as" disabled unless he or she is viewed as having a mental or physical impairment that substantially limits a major life activity, thus incorporating the standards of the first prong of the definition of disability into the employer's attitudes under the third prong. ( See, e.g., Webber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999); Lessard v. Osram Sylvania, Inc., 175 F.3d 193 (1st Cir. 1999); Standard v. A.B.E.L. Services, Inc., 161 F.2d 1318 (11th Cir. 1998).) A related controversy is about whether "regarded as" plaintiffs may be able to claim reasonable accommodations if they are not "really" disabled ( e.g., Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998) (en banc)).

Another important step in claiming Title I protection is showing that the individual claiming discrimination was "otherwise qualified" for the position that he or she sought. In 1999 the Supreme Court indicated substantial discretion for employers in making this determination. Hallie Kirkingburg had a perfectly safe record as a delivery driver despite his monocular vision. When Albertson's discovered his condition, they fired him because he did not meet federal safety standards for commercial truck drivers. They did not examine the reasonableness of the standard or the possibility that Kirkingburg might qualify for a Department of Transportation waiver program. Albertson's, the Court concluded, could simply rest on the government's determination ( Kirkingburg v. Albertson's, Inc., 1999 U.S. LEXIS 4369).

Disabled persons are entitled to "reasonable accommodations," but a defense for an employer is to show that accommodations would impose an "undue hardship." Reasonable accommodations thus do not include actions of "significant difficulty or expense," measured in terms of the costs of the accommodation, financial resources of the facility at issue, and financial resources of the employer as a whole. The EEOC Interpretive Guidance recommends that, in determining reasonable accommodations, the employer and the employee use a collaborative problem-solving approach to modify employment practices to give the disabled employee opportunities for job performance that are equal to those of a similarly situated nondisabled employee. How much, and what kind, of accommodations are "reasonable" is an example of an issue that divides the basic goals of the ADA. Is the goal principally to level the playing field between disabled and nondisabled people or to achieve greater employment for the disabled, and thus reduce their dependency? The Supreme Court has not yet ruled on either the meaning of open-ended terms such as "reasonable accommodations" or the status of the EEOC's examples of reasonable and effective alterations of practice.

Some Resolution, but Questions Remain

An issue that has recently been resolved is the interface between Title I and federal and state "safety net" statutes. Carolyn Cleveland, an employee who had suffered a stroke, sought disability benefits during the periods when she was unable to work and the period after she was let go by her employer, she alleged as the result of a failure to provide reasonable accommodations. Yet she claimed that she was entitled to the protection of the ADA because, although she was denied employment and thus could not work, she nonetheless remained qualified to work. The Court held that, in an appropriate case, a person may argue both that he or she is entitled to the benefits of a welfare program and to the right to be free of employment discrimination under the ADA ( Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597 (1999)).

Title II of the ADA, which prohibits discrimination in publicly provided services, activities, or programs, has also seen recent path-breaking attention by the Supreme Court. In Olmstead v. L.C., ___________ , ______ (1999 U.S. LEXIS 4368), the Court broke new ground in civil rights by holding that unjustified institutionalization of individuals with disabilities who qualify for community placements is discrimination under the ADA. The determination that institutionalization is segregation has been much heralded by defenders of independent living and community-based placement. Nonetheless, Olmstead may in one respect prove to be a Pyrrhic victory for them. The state's defense was that Title II does not require "fundamental alteration" of state programs: providing immediate community placements could divert resources and force the closure of institutions needed by people who are too severely impaired for community placement. In remanding, the Supreme Court agreed that overall program costs should be considered in evaluating the state's program. Thus states will remain free to limit the extent of their overall commitment to services for people with disabilities because of program costs. Olmstead may not move much beyond Alexander v. Choate (469 U.S. 287 (1985)), which held that Tennessee's Medicaid program did not violate the Rehabilitation Act even though limiting hospital stays had a disparately negative impact on the disabled.

Another major unresolved issue, for the ADA as well as other civil rights statutes, is Congress's power to authorize lawsuits that seek to remedy violations by state governments or their agencies. In October 1999, the Supreme Court heard oral argument on whether Congress intended to abrogate state sovereign immunity in the case of the Age Discrimination in Employment Act (ADEA) and, if so, whether such abrogation is constitutional ( Kimel v. Florida Board of Regents, No. 98-791, argued Oct. 13, 1999). A holding about the ADEA may not be generalizable to the ADA because the ADEA does not explicitly state Congress's intention to abrogate state sovereign immunity, and because disability and age may be different for purposes of the scope of Congress's power to enforce the equal protection clause under section 5 of the Fourteenth Amendment. Nonetheless, an adverse ruling in Kimel would certainly be cause for renewed attention to whether Congress properly authorized litigation enforcing the ADA against state governments, whether as employers or as providers of public services. It would surely be regarded as a bitter anomaly in the private sector if private employers were subject to suit under the ADA but state governments were not.


To a significant extent, these problems in interpreting the ADA can be traced to a failure to come to agreement about both the purposes of the statute and its philosophical and political presuppositions. For it may be chimerical to pursue equal opportunity within a framework that emphasizes how different the beneficiaries are from other people, and that defines them in statute as dysfunctional. Further, as the ADA approaches its tenth anniversary, some theorists wonder whether the adversarial aspects of a rights-based approach serve disabled people less well than appeals to the moral value of caring for others or to the goods and virtues of a fully inclusive community. Yet, despite all these troubling questions, the voices that propel the disability rights movement continue to call for achieving justice, as well as good lives and good communities, for people with disabilities.

Leslie Francis is a professor of Philosophy and professor of Law at the University of Utah. Anita Silvers is a professor of Philosophy at San Francisco State University.

Author's Note: This article relies on research included in a forthcoming volume, Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (ISBN 0-415-92367-0(h) 0-416-92368-9(p)), edited by Leslie Francis and Anita Silvers, to be published by Routledge in late spring of 2000).