Defining Disability Part Two: The American Legal Model

In 1973, Congress passed the Rehabilitation Act, which made it illegal for companies receiving more than 2500 dollars worth of government contracts to discriminate against disabled employees as long as the disability does not impair a function necessary for the job. The act defines an"'individual with a disability' ... as any person who(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. " Again it is hard to consider individuals like FDR, Christy Brown, Stephen Hawking, Ray Charles, as well as lesser known individuals like Jessica Parks AKA the armless cheerleader as being substatantially limited in one or more major life activities. Some, like FDR, are not regarded as disabled, but again much like in the mechanistic view, there is a medical record to objectively quantify the presence of a physical disability.

The wording of the act is vague, however, it was specific that disability DID NOT INCLUDE : transvestism, transsexualism, pedophilia,exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, homosexuality or bisexuality. The exclusion of homosexuality and bisexuality makes sense considering that it was excluded at the same time it was removed from the DSM. In essence, if it's not a disease, you can not claim protection for it as a disability.

The inclusion of mental illness allowed individuals suffering from a range of disorders including accepted diagnoses like schitzophrenia, borderline personality disorder, and depression to sue for protection as a disabled person. Unfortunately other more controversial diagnoses snuck in and in 1980 a data processor for the Phileadelphia School District sued for protection after he was fired for being late to work almost every day. The employee claimed to suffer from "a neurotic compulsion for lateness", and psychiatrists testifed as much at the trial. (Although he won the original suit, a higher court reversed the decision.)(A Nation of Victims Sykes 130-131)<br>

In Panzavides v Virginia Board of Education, in 1991, a teacher who failed a standardized test eight times, which was designed to measure listening, reading, and writing skills, sued for protection. Two of the times the test was administered she was given extra time and a transcript of the oral portion. She claimed that the test did not accomodate her handicap. The first federal court dismissed the case, but the Fourth Circuit Court of Appeals reinstated the claim.

The Rehabilitation Act was fairly limited it in its scope and so in 1990 The Americans with Disabilities Act was passed. The ADA opens with the admission that "(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older; (2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;" The definition of disability remains the same as in the Rehabilitation Act, however the scope of the law is far more vast. It prevents discrimination on the basis of disability to any workplace with more than 15 employees working 20 hours a day.

However, in 2001, the Supreme Court ruled 5-4 on a case the University of Alabama vs Garrett. Garrett sued the University of Alabama under Title 1 of the ADA. Garrett had worked for the University since 1977. In 1994, she was diagnosed with breast cancer, (according to the American Cancer Society about than 215,990 women were diagnosed with invasive breast cancer 2004). Despite her desire to keep working and her belief that working would be therapeutic for her, her supervisor tried to send her home on several occassions, her job was being "actively recruited", and she was denied access to her computer. (More details about the Garrett case can be found here) Rehnquist in his decision quoted the ADA about discrimination based on disability being a "pervasive social problem" but then continued on to write, "although the record includes instances to support such a finding, the great majority of these incidents do not deal with state activities in employment. Even if it were to be determined that the half a dozen relevant examples from the record showed unconstitutional action on the part of States, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which legislation must be based." So it's a pervasive social problem, but it's not a pattern. Neat trick. Furthermore, he claimed that "the Fourteenth Amendment does not require States to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly–and perhaps hardheartedly–hold to job-qualification requirements which do not make allowance for the disabled."

First I would like to say that I am enthralled by the idea of rational discrimination. I like the idea of unicorns and the lochness monster too, but I don't believe in them. Garret lost her case not because she couldn't function in her job but because she was "rationally terminated" on the unfounded suspicion that at some unknown later date she might not be able to fulfill her job requirements. Her ability to continue pursuing the case for the next eight years indicates that her ability to function at her job would not have been impaired by her treatment and was only impaired by supervisor's behavior. Perhaps Rehnquist hardheartedly treated the Garrett case because he has a federal job which is protected from termination even when he has to miss work for a tracheotomy.

Part of the problem with the American legal model is the inconsistency of enforcement due to the vague nature of the definition. A teacher who can not pass a test to measure reading and writing is granted protection, while a functioning worker with breast cancer is not. One would think that the inability to pass a test would fall under the qualification that it prevents the sufferer from completing a necessary component of the job.

The Legal model is complicated further by the fact that often genuinely disabled people lack of the resources and energy to pursue a legal case. As Barbara Ehrenreich points out in her essay "Welcome to Cancerland" "scared and medically weakened women can hardly be expected to transform their support groups into bands of activists and rush out into the streets." Although she qualifies the statement as referring only to women, it certainly can be extended to both disabled men and women.

Incidentally a left handed postal clerk accused the US Postal Service of being discriminatory for setting up filing cases for the "convenience of right-handed clerks" (Sykes 127). However, left handed people are no longer required to learn to write with their right hand, and left handed students are supplied with desks to accomodate them. Under the ADA, most likely such a person would not be granted protection as a disabled person, but rarely do they seek asylum under such a law as they often do not see themselves as disabled.

Comments: Post a Comment

    This page is powered by 
Blogger. Isn't yours?