When you think of “disability law,” you might automatically think about disability rights law. Disability rights law focuses on the enforcement of disability discrimination laws. However, disability law is much broader. Disability law is all-encompassing, as disability affects all aspects of life. Disability law is health law, consumer law, housing law, employment law, and more.
I even started a project based on this understanding: While working as a staff attorney at Tzedek DC (a nonprofit dedicated to safeguarding the legal rights and financial health of Washington, D.C., residents with low incomes), I led the organization’s Disabilities Community Project. My work focused on the ways that disabled people were uniquely and disproportionately affected and targeted by consumer and debt issues. In fact, consumer claims may help supplement disability discrimination claims, particularly in public accommodations cases, including by providing for additional damages.
Right now, I am Disability Economic Justice Counsel at the National Partnership for Women & Families. My work focuses on advancing policies that improve economic outcomes for disabled women, particularly disabled women of color. Our work focuses on issues including paid family and medical leave, the wage gap, maternal health, reproductive justice, and more.
Some may also think about disability rights as separate and apart from other types of civil rights claims. However, disabled people are not just disabled—we are whole individuals. Often, the ways our identities intersect affect our experiences. Black, Indigenous, Latine, LGBTQIA+, and other multi-marginalized disabled folks have unique experiences based on their identities; they may also face many forms of actionable discrimination.
We generally think about areas of law as siloed. However, it is rare that they are. Often, the injustices our clients experience are based on their identities or even the intersections of their identities. If we can convey that in our claims, it can help make their cases more effective. Including a genuine civil rights claim, of course, can bolster a case. But even when a narrative does not rise to the level of an additional civil rights claim, it can still help shape the claim. Lawyers in this field must be sure always to discuss these ideas with their clients to ensure they consent and are guiding this path.
Working with Disabled Clients
When practicing disability law, you will work with disabled clients. A discussion on working with disabled clients is ripe for a far more detailed article. However, there are a few basic things worth noting. Good lawyering is client-directed regardless of the client’s identity, but it is particularly important to ensure that you are aware of the needs, priorities, and goals of disabled clients. Disabled clients may have particular access needs that must be met. Not every person with the same disability has the same needs, and one person might even have access needs that conflict or adjust over time. Continuing to check in with clients about their needs over the course of the representation—not just at the beginning—is important.
It is always a good idea to explain things in plain language or in a way that is as simple as possible. “Legalese” is not accessible for most clients, disabled or not. Lawyers should also understand that American Sign Language (ASL) is a different language from English. There are also signing languages that are not ASL. Some folks who are Deaf only sign, or English might not be their first language. In those cases, insisting on captions or writing in place of oral communication would not work well. Always ask clients how they prefer to communicate. Understanding and mastering trauma-informed lawyering techniques are also important for working with disabled clients.
Making sure that the client has autonomy and control over the representation is a cornerstone of excellent and ethical lawyering for any client, but it is particularly important when working with disabled clients. Lawyers might sometimes make assumptions about what a disabled client can and cannot do or understand. Lawyers must always presume capacity. Even when capacity is “diminished,” lawyers generally have an ethical obligation to “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” (Model Rules of Pro. Conduct. r. 1.14(a) (Am. Bar Ass’n 1983).) A discussion about client capacity is another topic that is ripe for a separate, more detailed article.
Additionally, many clients who have disabilities may not identify as disabled. There is a stigma associated with disability. Clients also may not consider their conditions to qualify as a disability. For example, people with conditions such as anxiety, depression, diabetes, and chronic pain may not consider themselves to be disabled or recognize that their conditions qualify as a disability. You may describe to clients how the law may protect them, but following your client’s lead and respecting how they identify are important. This also includes whether an individual prefers language that is person-first (i.e., “person with a disability”) or identity-first (i.e., “disabled person”).
Key Laws
There are several disability rights laws that are helpful to understand, regardless of the area of disability law you hope to pursue:
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) is the expansive federal civil rights law that protects against disability discrimination in the private sector. The ADA has several titles:
- Title I of the ADA prohibits discrimination in the workplace by an employer with 15 or more employees. (42 U.S.C. §§ 12111(5)(A), 12112 (2022).) The prohibition against discrimination includes a failure to provide reasonable accommodations, unless it imposes an undue hardship. (42 U.S.C. § 12112(b)(5) (2022) (establishing several factors in considering what constitutes an undue burden).) An undue hardship is a “significant difficulty or expense”; it is not simply an inconvenience. (42 U.S.C. § 12111(10)(A) (2022).)
- Title II of the ADA prohibits discrimination by public entities, including by state and local governments and any public transportation services they provide. (42 U.S.C. §§ 12132, 12141–50, 12162 (2022).) Public entities are required to provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” (28 C.F.R. § 35.130(d) (2022).) In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court held that undue institutionalization qualifies as discrimination under the ADA and its regulations. Care provided at home and in the community might be required in those instances. (Id.)
- Title III of the ADA prohibits discrimination by public accommodations, such as restaurants, stores, museums, hotels, and movie theaters. (42 U.S.C. § 12181(7)-2 (2022).)
- Title IV of the ADA addresses telecommunications. It requires telecommunications companies to provide “functionally equivalent” services to disabled consumers—in particular, consumers who are hard of hearing, DeafBlind, or have a speech disability—and established relay services. (47 U.S.C. § 225 (2022).)
- Title V of the ADA has miscellaneous provisions, including a prohibition against retaliation, rules of construction, and a provision noting that an “individual with a disability” does not include a person “currently engaging in the illegal use of drugs.” (42 U.S.C. §§ 12201, 12203, 12205a, 12210(a), 12213 (emphasis added).)
Civil Rights of Institutionalized Persons Act
The Civil Rights of Institutionalized Persons Act gives the attorney general authority to bring claims against institutions that cause harm to residents. (42 U.S.C. § 1997a (2022).)
The Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act of 1973 prohibits disability discrimination by any entity that receives funding from the federal government. (29 U.S.C. § 794 (2022).) The anti-discrimination and reasonable accommodation requirements of Section 504 work similarly to those of the ADA. Section 501 prohibits employment discrimination by federal agencies and establishes an affirmative action program for disabled employees. (29 U.S.C. § 791 (2022).) Section 503 prohibits employment discrimination by federal contractors and subcontractors that meet a certain threshold. (29 U.S.C. § 791 (2022).) Section 508 requires federal agencies to make electronic technology and communications accessible to employees and members of the public with disabilities. (29 U.S.C. § 794d.)
