Legal tide has turned against the disabled

By Lennard J. Davis. Lennard J. Davis is Professor and Head of the
Department of English of the University of Illinois at Chicago

November 25, 2001

Most Americans react to the idea of disability with good wishes and a
silent prayer to the effect that "there but for the grace of God go I."

With this level of detachment, few may have noticed a disturbing and
seemingly ineluctable trend in which the courts have been whittling away at
the provisions of the Americans With Disabilities Act, passed with much
fanfare and hoopla in 1990 under Bob Dole's stewardship, George Bush Sr.'s
imprimatur and bipartisan congressional support.

Ten years later, it has been estimated that 95 percent of the cases brought
before the courts under the provisions of that act have gone against people
with disabilities.

The Supreme Court has been steadily hacking away at the provisions of the ADA.

Two recent cases could end the effectiveness of that legislation. The first
case is one in which an employer wants the right to determine whether the
job that an employee may want is a danger to his or her health.

Chevron withdrew the offer of a refinery job to a man because he tested
positive for asymptomatic chronic hepatitis C. Chevron maintained that the
man would be doing possible harm to himself by accepting the position.
While the ADA provides that an employer cannot discriminate against someone
with a disability, Chevron asks that employers be allowed to discriminate
to protect the person from possible harm.

In bringing this case, Chevron is appealing a decision of a federal appeals
court in San Francisco that rejected "paternalistic rules that have often
excluded disabled individuals from the workplace." If the case is decided
in favor of Chevron, it will weaken the ADA by allowing employers, not
employees, to decide health issues.

The second case could have even more profound consequences in dismantling
the ADA.

In Toyota vs. Williams, the auto company argues that Congress has defined
disability too broadly. In this case an employee of the company had carpal
tunnel syndrome that limited the use of her hands. She was able to perform
her job perfectly well until she was transferred to a different task, which
she could not perform.

Her employer claimed she is not disabled because although she could not
perform her new task, she could brush her teeth, pick up objects in her
home and so on. Toyota demands that those claiming coverage under the ADA
must demonstrate that they are "severely restricted from using their hands
to perform a broad range of basic functions needed to meet the essential
demands of everyday life."

The ADA defines disability broadly as a substantial limitation in one or
more life activities. In addition, a person is considered to be in the
protected class not only if he or she has a disability but also if the
person is "regarded" as being a person with disabilities.

The latitude of this definition has had employers up in arms. They fear
they will be beset with requests from their employees for accommodations
and will be sued for violations of the act. This, they say, will reduce
employers to poverty. However, recent estimates of small businesses
calculate that accommodations cost, on average, less than $5,000, of which
half can be made up by federal credits.

States' rights

The Supreme Court, with its new activism, has decided previous cases so
that states' rights predominate over federal protections in the area of
disability. It has also ruled that people with correctable disabilities,
such as hypertension and myopia, are not protected under the law, even if
their employer discriminates against them for having such conditions. The
net effect of these decisions has been to continue whittling away the
protections designed by Congress for people with disabilities.

The lack of knowledge or interest in these developments on the part of
non-disabled people is part of a larger picture. We have created a firewall
between them and us. While many white people have embraced the cause of
people of color, and while many straight people have taken up the cause of
gay, lesbian, bisexual and transgendered people, few have taken up the
cause of people with disabilities.

Perhaps the reasons for this are telling.

No whites will become black; few straights will become gay; but every
person can become disabled. All it takes is the swerve of a car, the impact
of a football tackle or the tick of the clock to make this transformation.
Christopher Reeve, one day Superman, next day a quadriplegic, is the most
dramatic example of this quick-change act.

Baby Boomers

Today's Baby Boomer generation is fast heading toward disability. The World
Health Organization predicts that by 2020 there will be more than 690
million people older than 65, in contrast with today's 380 million.
Two-thirds of the elderly will be in developing and underdeveloped nations.

The increase in the elderly population will cause a major change in the
disease patterns of these countries. There will be increasing rates of
cancer, kidney failure, eye diseases, diabetes, mental illness and other
chronic, degenerative illnesses such as cardiovascular disease.

Although identity politics is popular these days, what people fear is that
disability is the identity one may become but that one didn't want. This is
the silent threat that makes folks avoid the subject, act awkwardly around
people with disabilities, and consequently avoid paying attention to the
backlash against disability rights.

Even without the Baby Boomers, 15 percent to 20 percent of people in the
U.S. have disabilities. Add to this caregivers and family members, and
about half of the population is dealing with disability. People with
disabilities make up the largest physical minority in our country--too
large a group to ignore, and too large a group to roll back the protections
afforded to them.

We have to recognize that "them" is actually "us." If employers are
concerned that the protected class is too large, they may have to
reconsider their position as more people become disabled.

Effects of time

Most people would be better off identifying with people with disabilities
than fearing them. As you begin to notice your hearing going, your hands
stiffening, your eyes in need of stronger glasses, you may well want to
rethink what laws are being consigned to the dustbin of history.

Would it be such a miscarriage of justice if all of us were protected from
discrimination just as all of us are protected from voter fraud and
unwarranted search and seizure?

It isn't necessarily bad to be disabled, but it is bad to be discriminated
against, unemployed, poor and blocked by bad laws, architecture and
communication.

One out of 5 people now living near you has a disability. They are your
uncles and aunts, grandmothers and sisters. Pretty soon they'll be you. We
need to think twice before we disregard the trend of the courts in
eviscerating disability rights.

To do so we act, literally, at our own peril.


Copyright (c) 2001, Chicago Tribune