By Marta Russell
Disabled one day, next day you're not — that appears to be the outcome of a recent US Supreme Court ruling which has all but defined away "disabled".
The judges decided to deny a group of disabled workers access to the US federal court system to contest employment discrimination. As a result, many workers deserving protection could be eliminated from the work force and their right to advance their careers thwarted.
At issue in three cases (Sutton vs United Airlines, Murphy vs UPS and Albertsons vs Kirkingburg) was what constitutes "disabled" under the Americans with Disabilities Act (ADA) which protects people with disabilities from discrimination.
In Sutton vs United Airlines, twin sisters were denied commercial pilots' jobs because they were near-sighted, even though the problems could be corrected by wearing glasses. They sued, claiming discrimination under the ADA. The Supreme Court ruled that because the sisters' poor vision had been corrected, they were not disabled and therefore were not entitled to sue. The ruling ignored the fact that their poor vision was the reason they were denied licenses.
Significantly narrowing the scope of the ADA, the court ruled that people with correctable physical limitations, such as nearsightedness or high blood pressure, are not disabled and not protected from discrimination. The court drew a line between workers whose disabilities can be mitigated through corrective equipment or medicine, and those workers whose disabilities cannot.
But what does "mitigated" imply? The possibility that the ruling could be stretched to include the people the Supreme Court maintains the ADA protects was pointed out by the judges who dissented from the majority opinion.
Justices John Paul Stevens and Stephen Breyer said the court's ruling could mean that the ADA "would not protect those people who [have] lost limbs in industrial accidents or perhaps in the service of their country" because they can be fitted with artificial limbs. The dissenters accused the court of making the ADA's safeguards "vanish when individuals make themselves more employable by ascertaining ways to overcome their physical or mental limitations".
The court's decision may place workers with disabilities in a vicious circle. If a person is not considered disabled because a condition is "correctable" with glasses, wheelchairs, prostheses, hearing aids, insulin, guide dogs etc., employers need not make available facilities or changes in the workplace to take account of their needs. Yet disabled workers will not be employed, or will be fired, due to the limitations on their job performance that their "non-disabilities" may continue to cause.
Employers may still conclude that a person is too disabled to work, even though they are not disabled enough to be covered by the ADA. The ruling is a catch-22 for ADA plaintiffs: if one is disabled enough to sue, one is too disabled to work. The employer can fire the worker with a disability and the ADA is gutted for those who are left — a hair-raising prospect for those future plaintiffs with disabilities needing judicial remedies.
Some advocates have pointed out that the ruling flies in the face of what Congress intended when it passed the ADA. However, the ruling is not a departure from what the lower courts have already dealt plaintiffs with disabilities who have taken employers to court for discrimination.
Studies show that in ADA cases, defendants (businesses) overwhelming prevail at both the trial and appellate court levels. Employer defendants prevail in more than 93% of reported ADA employment discrimination cases at the trial court level, and at 84% of appeals. "Only prisoner rights cases fare as poorly", observed Ohio law professor Ruth Colker.
No law exists in a vacuum. Every re-distributive measure, including civil rights measures, are a political compromise between the public and big business and government.
The National Chamber of Commerce Litigation Center called the Supreme Court's decision "an incredibly significant victory for the business community". The business lobbies that opposed the ADA from the beginning, such as the National Association of Manufacturers (NAM) and the US Chamber of Commerce, filed briefs urging the Supreme Court to limit the definition of disability.
NAM stated: "Like sexual harassment last year, disability discrimination is the major employment law issue on the Supreme Court's docket this year. Manufacturers should not be forced to pay damages, including punitive damages, to individuals who can lead normal lives with medication or corrective lenses."
With pressure also from the American Trucking Association and the Equal Employment Advisory Council (made up of more than 315 major companies), is it any surprise that the conservative court delivered a majority of seven to two in favour of business' demands?
Big business does not want to dip into profits to improve disabled people's employment rate. When the ADA was signed into law in 1990, the Cato Institute, a right-wing libertarian think-tank, called on US President George Bush "to ask Congress to reconsider" the ADA because it was a re-regulation of the economy that was harmful to business.
Paul Craig Roberts, an economist at the Center for Strategic and International Studies in Washington, warned that the ADA "will add enormous costs to businesses that will cut into their profits". The pro-business Washington Times made its objection clear with an editorial titled: "Handicapping the Economy: the Downside of the New Disabilities Law".
Since the passing of the ADA, business groups, economists and right-wing think-tanks have campaigned for its repeal or for its provisions to be weakened. The Cato Institute set the tone: "If Congress is serious about lifting the regulatory burden from the economy, it must consider major changes in, if not outright repeal of, the ADA. And if Congress is to undo the damage already done by the act, it should consider paying reparations to cover the costs that individuals, private establishments and enterprises have suffered under the ADA's provisions."
Disability advocates, fearing a legislative gutting of the law under attack by business, are split on whether the ruling will harm or help in the long run. Some argue that maybe this will help those with significant disabilities by focusing the ADA on their needs. There is no evidence to suppose this will be the outcome.
Significantly, disabled people who need more accommodations on the job (and cost business more in insurance and access modifications) are either not being hired in the first place or are losing in court discrimination cases just as often as less disabled workers.
A 1997 comparative study with pre-ADA state and federal disability anti-discrimination laws shows that the ADA has not produced the gains in employment rates, wage rates or employment experience for people with disabilities that advocates expected.
Nine years after the passage of the ADA, national employment surveys show no real gain in employment. One study suggests that the proportion of working-age adults with disabilities who are employed has declined since 1986, when one in three were working.
The Supreme Court decision has rolled back access to civil rights remedies for a large segment of the disabled population while discrimination steams ahead.
[Marta Russell, who has been disabled from birth, is the author of Beyond Ramps, Disability at the End of the Social Contract (1998). She won the 1994 Golden Mike award for best documentary from the Southern California Television and News Association.]