Crippled Justice - Crippled Justice THE HISTORY OF MODERN DISABILITY POLICY IN THE WORKPLACE Ruth OBrien The University of Chicago Press Chicago and

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Unformatted text preview: Crippled Justice THE HISTORY OF MODERN DISABILITY POLICY IN THE WORKPLACE Ruth O’Brien The University of Chicago Press Chicago and London RUTH O'BRIEN is associate professor of government at the John Jay College of Criminal Justice and deputy chair of the political science program at the Graduate Center of the City University of New York. She is the author of Workers' Paradox; The Republican Origins of New Deal Labor Policy, 1886--1935, 2001 by The University of Chicago All rights reserved. Published 2001 Printed in the United States of America 10 09 08 C7 06 05 04 03 02 01 5 4 3 2 1 ISBN {cloth): 0-226-61659-2 ISBN (paper): 0-226-61660-6 @The paper used in this publication meets the minimum requirements of the American National Standard for information Sciences—Permanence .of Paper for Printed Library Materials, ANSI Z39,48-1992.. CONTENTS PREFACE ix INTRODUCTION I 1 "Deform'd, Unfinish'd, and Maladjusted": The Psychoanalytical Model of Disability 27 2 From Warehouses to Rehabilitation Centers: Restoring the Whole Man 63 3 From the Whole Man to the Whole Family: Rehabilitating the Poor 88 4 An Accident of History: Rights and the Passage of the Rehabilitation Act 107 5 Court Constraints on Disability Rights 137 6 Two Horns of a Dilemma: The Americans with Disabilities Act 162. AFTERWORD 2.07 NOTES 2.23 INDEX 277 vii THE AMERICANS WITH DISABILITIES ACT 6 Two Horns of a Dilemma: The Americans with Disabilities Act In 1990, Congress enacted the Americans with Disabilities Act (ADA). Scores of members of Congress crowded onto the list of legislative sponsors hoping to claim credit for this humanitaria Like so many pieces of disability legislation before it, the ADA transcended partisan lines. With President George H. W. Bush's avid support, Congress passed it by an overwhelming majority, and the ADA was signed into law with great panoply. The passage of ADA was heralded as the most meaningful law since the Civil Rights Act of 1964. Members of the disability rights movement thought they had great cause for celebration. "It's the first declaration of independence and equity for people with disabilities," said Justin Dart, a disability activist. "It's like the Berlin Wall coming down. Another person with a disability succinctly conveyed her enthusiasm by declaring, "I'll be human again."2 Other disability activists extolled specific provisions in the ADA. In particular, Robert Burgdorf described the public accommodations provisions as "innovative" and "unprecedented [in] scope."3 He went so far as to suggest that the civil rights community, long seen as the role model for the disability rights movement, might profit from using the public accommodations provisions in the ADA as a model for changing the Civil Rights Act. These provisions banned discrimination against disabled people, not only in hotels and restaurants ut in every mom and pop" store that civil rights legislation failed to reach. Disability activists also viewed the provisions for protection from discrimination at the workplace— —as a tremendous accomplishment. While the disability rights movement was exhilarated, employers voiced 163 fears of being buried under an avalanche of lawsuits. In preparation for the enactment of the ADA in 1992, employers had their legal counsel trained in disability law and set up workshops to help them understand it Some employers expressed the concern that the new disability law would erode their rightful control over the workplace. Contrary to the business community's forecast, disabled people have found the provisions for protection from employment discrimination have been profoundly disappointing.6 Few disabled people have gained employment as a result of the antidiscrimination provisions in Title L An even smaller number of disabled people, who already have employment, have not had their suits thrown out by the federal courts on summary judgment. And just a handful of people have won suits against employers, forcing them to provide reasonable accommodations. These conclusions are substantiated by the fact that 80 of all Tide I cases have been thrown out on summary judgment and tha remaining 20 percent in the employer's favor. mid-1999, the Supreme Court went even further than most of the lower federal courts. The Court Limited who warrants statutory protection, with the holding that persons must have a disability that substantially limits their daily life activities which cannot be mitigated by medication or equipment. What is more, the Supreme Court affirmed the lower federal courts' position that some people with limiting, but not substantially limiting, disabilities expose themselves to termination when they request accommodations. Oddly enough, this legal bind was not anticipated by either the advocates or the opponents of the ADA. One activist had been concerned that 164 CHAPTER SIX er the disability activists nor business lobbyists could have anticipated this battle over definitions for two reasons. First, the three-pronged definition of a disability that Congress included in the ADA was not new. This definition had been included in the Rehabilitation Act, though neither the federal courts nor employers contesting requests for accommodations had made it into a significant issue. Second, in House and Senate Committee Reports and on the floor of both chambers, Congress spent a great number of words clarifying what constituted a disability. The idea that medication or assistive devices, like a prosthesis, mitigated a condition had been discussed and dismissed by Congress. In rendering these three decisions, the Supreme Court clearly departed from the administrative and legislative precedents What changed between the 1970s and the 1990s was that the lower federal courts and the Supreme Court switched their emphasis from the threshold about qualifications to the one about coverage. That is, the federal court judges and justices stopped referring to medical experts and started acting like these experts themselves. Acting as such experts, these judges and justices have turned themselves into gatekeepers. instead of adjudicating if people with disabilities have encountered discrimination, they have concentrated on who deserves protection. The federal court judges and justices essentially have said "enough," and limited statutory coverage under Title I. Although critics of antidiscrimination legislation often have leveled the charge that this type of protection produces frivolous lawsuits that waste the time and money of all parties involved, the Supreme Court's rulings on Title I constitute the second time this charge has not been dismissed. Bar- ring one exception, the Supreme Court has been expansive about these ju- risdictional issues, deciding that the Civil Rights Act of 1964, for example, included Hispanics, though Congress only discussed African Americans during the legislative process. What accounts for this type of reasoning is that vestiges of the psycho- THE AMERICANS WITH 165 analytic rehabilitation model remain in the minds of the lower federal court judges and a majority of Supreme Court justices. On one hand, the lower federal court judges have expressed themselves in terms of this model, because the few people they have ruled as deserving of accommodations could be characterized as "super crips," or people who more than compensate for their impairments. On the other hand, most of the federal court judges and a majority on the Supreme Court have incorporated the ideas underlying the psychoanalytic model by ruling that employers cannot be expected to meet the needs of employees who are impaired, though not substantially impaired, because it would undermine their managerial prerogatives. Requests for accommodation have been characterized by the federal courts as if disabled people thought they were exempt from the rules and regulations that govern the workplace. As a result, when disabled people pursue litigation, they put their credibility on the line. In most cases, the credibility of these people has been questioned, since the federal court judges have ruled that most of them do not have disabilities. In questioning the legitimacy of their claims, they are exposing these people with "boutique" disabilities for what they are—cheaters, shirkers, or frauds— who are unjustly attempting to circumvent the rules and regulations that all employees must abide in the United States. Public attention is drawn from the prejudice of the employer or the barriers within the workplace, which constitutes the crux of the disability rights model, to the person with a disability. The federal courts have not held employers or the workplace up for scrutiny because their decisions do not go beyond examining people with disabilities. Thus, the federal court judges and Supreme Court justices have taken it upon themselves to safeguard employers from being overrun by employee demands for accommodation. They have been, in effect, disciplining them for bringing cases to court that attempt to disrupt workplace normalcy. Attempting to modify the behavior of these employees, these judges and justices have limited their statutory access. Beginning in the early 1980s, the disability rights movement campaigned for the ADA. This movement wanted legislation that would strengthen the antidiscrimination provisions in the Rehabilitation Act and be applicable to disabled people who worked in the private sector. It was estimated that more than 3 million people with disabilities who wanted to work had not landed a position. 10 With the hope of employing these people, the disabil- 166 CHAPTER SIX THE AMERICANS WITH DISABILITIES ACT 167 Hahn calls existential anxiety, an unconscious source of prejudice that people without disabilities have because of their fears about having a disability themselves. Prejudice is prejudice, and the disability rights movement thought that the state and society should make the same commitment to its eradication that it had for women and minorities.13 Finall the rights approach furthered by the disability rights movement contended that policies reflect pervasive social attitudes and values. Dart explained that "our society is still infected by the ancient, now almost a disabling environment. This model also calls into question the stigma that so many people associate with disability. Yet, despite the lobbying efforts of the disability rights movement, the ADA is a hodgepodge of both the rights approach and the traditional psystrong statutory rights. It ascribes much of the joblessness of people with disabilities to employment discriminatio not their federal contractors pursuing Section 503 reported that only 22 percent of the people with disabilities working for them required any accommodations. Of that 22 percent, 51 percent were achieved at no cost, and 30 percent cost $500 or less. Also, workers with disabilities were often found to be just as productive as, or more productive than, their able-bodied coworkers. The employers' cost of workers' compensation, moreover, did not rise as a result of employing disabled people. The disability rights movement often referred to these figures as evidence that refusing to people with disabilities occurred not as a result of an employer's expense but because of either his or her ignorance or prejudice. Disability rights activists initially persuaded the legislative authors of the first bill that disability rights should be treated differently than civil rights. At the same time, the Court has decided that people with disabilities should be kept from flooding the courtrooms with their requests for reasonable accommodations. Interpreting the employment provisions for the first time, the Supreme Court decided against disabled people, not because they could not perform a job, or their requests were unreasonable, or even that they caused an employer undue hardship. Instead, the Court held that they should not be protected by the ADA. Given the strength of the statute, the Court insisted that the employers needed protection from being overrun by all the disabled people who were wrongly seeking legal redress. The primary distinction between civil rights and disability rights rests on the fact that pe disabilities must demonstrate that they belong In the late-1980s, it was widely acknowledged in Congress that the Rehabilitation Act had two interrelated problems. the broad language made congressional intent unclear, giving the federal courts free reign to interpret the legislation. Second, the Rehabilitation Act only people working in the pu or under a governmental contract. Senator Lowell Weicker, a Republican from Connecticut, introduced a disability rights bill in April 1988 that was premised on the assumption that people with disabilities regularly encountered discrimination in the workplace. While these people had to prove that they had disabilities, once this had been demonstrated they did not have to show that their employer or potential employer had consciously discriminated against 19 Between 1981 and 1988, discrimination against people with disabilities had become more pronounced. In 1988, only 23.4 percent of men with disabilities worked full-time, down from 29.8 percent, and only 13.1 percent of women, up from 11.4 percent. Salaries for men fell from 77 per cent to 64 percent of what other workers made, and from 69 percent to 62 percent for women. A study of the cost of accommodations in 1982 by The Weicker bill derived this perspective on discrimination from the Supreme Court's decision in Alexander v. Choate. Here, Justice Marshall had written for the Court that intentional and imintentional discrimination in the workplace should be actionable. This was not that discrimination could be proven solely through the disparate impact test, which discovered discrimination as a result of an impact. In other words, if only 170 CHAPTER SIX 1 percent of a company's employees had disabilities, whereas 5 percent of all potential employees lived with disabilities, a person with a disability could show that the company was discriminatory. Contrary to Weicker's belief, Marshall had not discarded the question of intent. Rather, he had tried to balance the disparate impact test with the need to prove discriminatory intent. The Weicker bill carried Marshall's idea one step further; using only the disparate impact test. Weicker's emphasis on the disabling environment came as no surprise to disability activists. After all, the bill had been the product of the National Council on the Handicapped. Although all the members on this council had been appointed by President Ronald Reagan, who was not a strong defender of disability rights, these members believed first and foremost that they represented the interests of people with disabilities Weicker's bill also included no provision for employers to claim that making a reasonable accommodation for a person with a disability would cause them undue hardship. Employers could not protest about the cost of THE AMERICANS WITH DISABILITIES ACT 171 I71 CHAPTER SIX sponsor, Harkin, deemed more important: reporting the bill to the Senate floor without amendments. 36 The employment discrimination provision was also weakened by the House Judiciary Committee. The term "essential functions" was modified so that the employer's definition of these functions was given consideration. As Representative Steny H. Hoyer, a Democrat from Maryland, described, "Consideration must be given to an employer's determination as to what job functions are essential." 37 A federal court would take into account both the employee's and the employer's ideas about what constituted the essential functions of a job and then make its own determination. Finally It relied on the administrative remedy that the Equal Employment Opportunity Commission (EEOC) provided. If people with disabilities believed that their employers or prospective employers had discriminated against them, they could file a complaint with the This change was viewed as a compromise. As Senator Theodore Kennedy, a liberal Democrat from Massachusetts, said, he would have preferred to include an "adequate remedy." He noted, "We have seen in the past that where we do not provide an adequate remedy we do not get compliance." Yet Kennedy, among other supporters, did not think the bill's proponents had the strength to fight for a stronger enforce ment mechanism. disabilities that have the time or the resources to go down to the court house to be able to get that injunction and bring the case," Kennedy's two statements make his motivation unclear. On one hand, he was dissatisfied with "the balance that we struck" in providing the less effective remedy. On the other hand, he had few feats that people with disabilities would have the energy or the resources to pursue litigation. "What we have seen in the areas of the disability movement," he observed, "is a different pattern in terms of litigation than has been the case of some of the other violations of the basic civil rights Although the Senate and House versions of the ADA bill had a few discrepancies, none of these addressed the fundamental provisions within the legislation.44 They involved either minor jurisdictional points or politically sensitive issues, such as whether HIV, drug addiction, or sexual problems should be considered disa ilities.45 Once concessions were made on these points, the House passed the final version of the ADA bill with a vote of 377 to 28 on July 12. The following day it passed by a vote of ninetyone to six in the Senate.46 On July 26, 1990, Bush signed the Americans with Disabilities bill into law.47 Although some disability rights were disappointed that the final provisions about workplace discrimination no longer made the By not following the Weicker assumption about a disabling environment, however, the employment relations provisions were modeled on the rationale underlying the Supreme Court decisions in Davis, Alexander, and Arline. As a result, the ADA replicated the Catch-22 situation embod- 174 CHAPTER SIX THE AMERICANS WITH DISABILIRIES ACT 75 ied by Section 504. First, Unlike Section 504 of the Rehabilitation Act, which originally gave almost no guidance about implementation, the ADA saw Congress articulating what it meant by the threshold requirements. While in the legislative debate it was not clear that members of the Senate or the House understood the legal complexities that these definitions would instill in the federal courts, the Senate Report issued by the Committee on Labor and Human Resources, chaired by Kennedy elaborated the meaning of these requirements. First, in an attempt to provide greater relief for people with disabilities, the Senate Report offered the extremely broad definition of a disability that had been included in the Rehabilitation Act Amendments of 1974. A was "a physical or mental impairment that substantially limits one or more of the major cancer survivor, for example, who had a record of having such an impairment and, although no longer impaired by it, would not be hired by an employer who feared high insurance premiums. Finally, it covered a person who had no impairment but was regarded as having one. This category was included so that a burn victim, for example, could be protected. This third prong of the definition was "particularly important for individuals with stigmatic conditions that are viewed as physical impairments but do not in fact result in substantive limitations of a major life activity "49 word "otherwise" made the issue more confusing. Moreover, the means of judging qualifications were to be determined, not by examin ing every aspect of the job but by scrutinizing its essential functions. The term "essential functions" was used so that people with disabilities would not be fired for failing to perform what the Senate Report called "marginal tasks" or "functions." For further clarification, Congr...
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