II. LEGAL ISSUES

Persons with disabilities daily face challenges beyond their individual disabilities. Social prejudice and physical barriers often pose far greater hindrances. Prejudice takes the form of the myths, stereotypes, and irrational fears that many people in society associate with impaired functioning. Barriers are those environmental factors, both physical and social, that limit the meaningful involvement of persons with disabilities in normal life activities (Herr, Gostin, and Koh). While a corpus of law has been developed in the United States to protect persons with disabilities, the passage of the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 112101–12213 [Supp. II 1990]) marks the most important federal antidiscrimination legislation since the Civil Rights Act of 1964.

The Social Situation of Persons with Disabilities

The ADA was enacted in response to profound inequities and injustice for persons with disabilities (National Council on Disability). Americans with disabilities typically are poorer, less educated, less likely to be employed, and less likely to participate in social events than other groups in society. Social attitudes toward persons with disabilities add to their burdens. Persons with disabilities may be ignored, treated with pity or fear, adulated as inspirations for their efforts to overcome their disabilities, or expected to be as normal as possible. Moreover, Americans with disabilities have historically lacked a subculture from which to derive a collective strength, primarily due to the disparity of their disabilities and backgrounds. Disability interest groups, offshoots of civil rights groups, have filled this void in the last several decades (West).

Such prejudice and barriers raise a number of legal issues, most notably discrimination. In employment, in education, and in mobility, society often fails in its efforts to effectively accommodate persons with disabilities.

Legal Responses to Disability

Legal responses to disability range from application of constitutional theory to statutory initiatives. It would be comforting to believe that the U.S. Constitution provides meaningful protection to persons with disabilities. Sadly, the Constitution has little to offer persons with disabilities except in egregious cases. The Bill of Rights is applicable principally to government (DeShaney v. Winnebago County Department of Social Services, 1989). Since most forms of discrimination take place in the private sector, the Constitution is of limited applicability.

Even where state action can be demonstrated, the Supreme Court has not enunciated a coherent and compelling constitutional doctrine to protect persons with disabilities against discrimination. The Court, for example, has never found disability to be a suspect classification, and most government activities do not deprive persons with disabilities of a "fundamental freedom such as liberty" (City of Cleburne, Texas v. Cleburne Living Center, Inc., 1985). Accordingly, the Court might be expected to uphold a state discriminatory action, provided the government could show a reasonable basis for its policy.

The Supreme Court, in one of its few constitutional decisions concerning discrimination against persons with disabilities, did suggest that it would not tolerate clear instances of prejudice or animus in government policies. In City of Cleburne, Texas v. Cleburne Living Center, the Court struck down a city zoning ordinance that excluded group homes for persons with mental retardation. The Court, in a particularly thorough search of the record, found no rational basis to believe that mentally retarded people would pose a special threat to the city's legitimate interest (Gostin, 1987).

A convincing constitutional argument could be made that persons with disabilities should have a high level of constitutional protection as is the case with racial minorities and women. Persons with disabilities have a similar history of exclusion and alienation by the wider society. They are often subject to discrimination on the basis of their status without regard to their abilities.

Much of the legal protection afforded to persons with disabilities is under federal and state law. Statutory initiatives in disability law fall into three general categories: (1) programs and services; (2) income maintenance; and (3) civil rights. Such statutes incrementally have sought the legislative goals of full participation and independence for persons with disabilities. While state laws vary in scope and effect, at the federal level three main acts shaped the corpus of disability law prior to enactment of the ADA.

The federal Rehabilitation Act (29 U.S.C. 791–794 [1988 and Supp. I 1989]), enacted in 1973, covers federally funded entities (and continues to cover all federal employees). Section 504 of this act (broadened by amendments in 1987) prohibits discrimination against otherwise qualified disabled persons in any federally funded program, executive agency, or the Postal Service. Sections 501 and 503 require affirmative action hiring plans in the federal government and certain large federal contractors.

The Individuals with Disabilities Education Act (IDEA) (42 U.S.C. 6000–-6081 [1975]; 20 U.S.C. 1400 et seq. [1991]), enacted in 1975 and amended in 1990, mandates a free and appropriate education for all children with disabilities, encouraging integration (mainstreaming) whenever possible.

The Fair Housing Amendments Act of 1988 (42 U.S.C. 3601–3619 [1988]) ensures that persons with disabilities are a protected class in housing discrimination cases, and mandates access requirements for new housing and adaptation requirements for existing housing to ensure that the housing needs of disabled persons are met. This act continues to cover housing discrimination in place of specific provisions in the ADA.

The Americans with Disabilities Act of 1990

While these initiatives were a start, they failed to address cohesively the needs and rights of persons with disabilities. The ADA is a strong response to the needs and rights of persons with disabilities, needs and rights articulated by the growing voice of disability interest groups in America. It offers a potentially important vehicle for safeguarding the rights of persons with disabilities, but the judiciary has been whittling away its protections over recent years (Gostin, 2002).

More specifically, as an outgrowth of civil rights law, the ADA serves as a legal tool because of its broad scope and unique ability to adopt the visions of both equality and special treatment. The ADA recognizes that a person's disabilities often have little to do with his or her inabilities. Often it is society's reactions to the person with disabilities or society's structural barriers that disable the person. The mandate of civil rights law is to destroy those negative reactions and dismantle those barriers in order to restore equal opportunity and full participation in daily life activities with dignity, not charity. The ADA strives to achieve this objective.

The act prohibits discrimination against qualified persons with disabilities in employment, public services, public accommodations, and telecommunications. The principal change in federal law is that the ADA applies to all covered entities, whether or not they receive federal funding. The impact of the ADA on public health departments and communicable-disease law (Gostin, 1991b) and on the healthcare system (Gostin and Beyer) is significant. It will also have a significant impact on other important areas of bioethics, including the duty to treat, the right to health-benefit coverage, and medical testing and examinations by employers (Parmet).

Although the specific titles of the ADA have slightly different provisions, a finding of discrimination is based on adverse treatment of a person (1) with a disability who is (2) qualified or who (3) would be qualified if reasonable accommodations or modifications were made available.

Disability is defined broadly to mean "a physical or mental impairment that substantially limits one or more of the major life activities," a record of such impairment, or being regarded as having such impairment (section 3). The definition of disability theoretically covers a wide range of medical conditions. The courts had construed the Rehabilitation Act to include a wide-range of disabilities that are both genetic (e.g., Down syndrome [Bowen v. American Hospital Association], muscular dystrophy [S. Rep. no. 116]); or cystic fibrosis [Gerben v. Holsclaw] and multifactorial (e.g., heart disease, schizophrenia, or arthritis [S. Rep. no.116]). Disability was also construed to include diseases that are communicable (e.g., tuberculosis [School Board of Nassau County, Florida v. Arline], hepatitis [New York State Association of Retarded Children v. Carey], or syphilis); as well as those that are not (e.g., cerebral palsy [Alexander v. Choate], or diabetes [S. Rep. no. 116]). However, a person who is currently using illegal drugs is not considered disabled, but is covered once he or she has been successfully rehabilitated and is no longer using drugs (section 510). Similarly, a range of socially disapproved behavior disorders are excluded from protection, such as most gender-identity disorders, pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, and psychoactive drug-use disorders (section 511).

Moreover, a person is disabled if he or she has a record of, or is regarded as, being disabled, even if there is no actual disability (Southeastern Community College v. Davis). A record indicates that a person has, for example, a history of disability, thus protecting persons who have recovered from a disability or disease, such as cancer survivors.

The term regarded includes individuals who do not have disabilities but are treated as if they did. This concept protects people who are discriminated against in the false belief that they are disabled. It would be inequitable for a defendant who intended to discriminate on the basis of disability to successfully raise the defense that the person claiming discrimination was not, in fact, disabled. This provision is particularly important for individuals who are perceived to have stigmatizing or disfiguring conditions such as HIV, leprosy, or severe burns (S. Rep. no. 116).

Although the ADA theoretically covers a wide range of persons with disabilities, the Supreme Court has been significantly narrowing its scope. The first Supreme Court opinion on the ADA was quite hopeful. In its decision in Bragdon v. Abbott (1998), the Court held that a person with purely asymptomatic HIV infection was disabled within the meaning of the Act.

The Bragdon decision makes it more likely that, in the future, the courts will find persons with asymptomatic HIV infection protected under the ADA. The question remains, however, whether other health conditions will satisfy the ADA's definition of disability. As explained above, courts deciding cases under the Rehabilitation Act did not view the definition of disability as a strict obstacle for plaintiffs. The issues did not turn on whether an individual had a disability, but rather on whether the disability was the cause of the adverse action, or on whether the action was justified because a person's disability rendered her unqualified for a job or ineligible for a service. The judicial approach in disability cases was similar to the approach when individuals claim discrimination based on their race or gender. When making decisions regarding race or gender discrimination, courts do not engage in searching inquiries into whether the individual is really a woman, or really an African-American. Rather, these cases are often lost because individuals are unable to prove they have been discriminated against because of their race or gender (Feldblum, 1996).

Nothing during passage of the ADA suggested that courts would adopt a narrow definition of disability. But the legal landscape has changed dramatically (D'Agostino). Courts deciding ADA cases have arrived at a restricted definition of disability through two principal methods. First, many courts analyze whether a plaintiff is substantially limited in the major life activity of working. Courts often conclude that the impairment is not sufficiently limiting because there is a range of jobs that the individual can still perform. This narrow view makes little sense because the ADA was designed to prohibit discrimination against people with disabilities who can work, but who are nonetheless discriminated against.

Even if an individual's claim that her impairment limits a major life activity other than working is accepted, there is a second method by which courts have restricted coverage under the ADA. Courts scrutinize whether the individual's impairment substantially limits a major life activity. In Toyota Motor Manufacturing Kentucky v. Williams (2002), the Supreme Court adopted a narrow construction of "major life activity." The Court found that a medical diagnosis of carpal tunnel syndrome was not sufficient to qualify a person as disabled; nor is evidence that the person cannot perform "isolated, unimportant, or particularly difficult manual tasks."

Courts have also restricted coverage under the ADA by asking whether the impairment of a major life activity is "substantial." The Supreme Court requires that the impairment be "considerable." For example, in Albertsons v. Kirkinburg (1999) the Supreme Court held that a person with monocular vision is not disabled because the condition is not serious enough to substantially restrict his life activities.

The Supreme Court not only requires a substantial limitation in a major life activity, but it also requires that corrective and mitigating measures be considered in determining whether an individual is disabled. In Sutton v. United Airlines, Inc. (1999) the Court held that severely myopic job applicants for airline pilot positions are not disabled because eyeglasses or contact lenses mitigate their impairment. Similarly, in Murphy v. United Parcel Service, Inc. (1999) the Court held that a driver with high blood pressure is not disabled because his condition could be mitigated with medication. The Court did not claim that individuals with myopia or high blood pressure are not qualified to be pilots or drivers. Rather, the Court held that since the plaintiffs were not disabled, their qualifications for the job were not even relevant considerations under the ADA. Thus, in an ironic twist, although the ADA's goal is to provide anti-discrimination protection to individuals who (perhaps because they are taking medication) are qualified for jobs and eligible for services, such individuals are denied protection precisely because their medical conditions are under control.

The third prong of the definition of disability—which protects individuals who are regarded as having a substantially limiting impairment—has been applied quite restrictively by courts. Indeed, the Supreme Court in Sutton suggested that the employer or service provider must actually believe the person is substantially limited in a major life activity before receiving protection against discrimination. Thus, a person fired due to irrational fear or prejudice will not receive protection under the ADA provided the employer does not think the individual has a substantial physical or mental limitation.

A person is qualified if he or she is capable of meeting the essential performance or eligibility criteria for the particular position, service, or benefit. Thus, a person with a disability is not protected unless he or she is otherwise qualified to hold the job or to receive the service or benefit.

Qualification standards can include a requirement that the person with a disability does "not pose a direct threat to the health or safety of others" (sections 103[b], 302 [b][3]). The direct threat standard means that persons can be excluded from jobs, public accommodations, or public services if necessary to prevent a significant risk to others (School Board of Nassau County, Florida v. Arline, 1987). The significant risk standard originally applied only to persons with infectious disease. However, it was extended by the House Judiciary Committee to all persons with disabilities (H.R. Conference Report no. 101–596).

In order to determine, for example, that a person with mental illness poses a significant risk to others, evidence of specific dangerous behavior must be presented. In the context of infectious diseases such as tuberculosis, the Supreme Court laid down four criteria to determine significant risk:

1. the mode of transmission;
2. the duration of infectiousness;
3. the probability of the risk;
4. the severity of the harm (School Board of Nassau County, Florida v. Arline).

The Supreme Court in Chevron U.S.A. Inc. v. Echazabal (2002), held that a person with a disability is not "qualified" if she poses a direct threat to herself. This is a form of paternalism that is not in the language of the ADA, but had been supported by the Equal Employment Opportunities Commission. Allowing an employer to balance the benefits and risks for an individual, rather than allotting that power to the individual, opens the door to unfair treatment whenever an employer has reason to believe that workplace conditions or activities may be harmful.

The ADA requires reasonable accommodations or modifications for otherwise qualified individuals (sections 102[b][5], 302[b][2][A][ii]). This requires adaptation of facilities to make them accessible, modification of equipment to make it usable, and job restructuring to provide more flexible schedules for persons who need medical treatment (section 101[9]). To accommodate otherwise qualified persons with infectious conditions, an entity might have to reduce or eliminate the risk of transmission. Employers, for example, might be required to provide infection control and training to reduce nosocomial (disease or condition acquired in the hospital) or blood-borne infections. An employer, however, is not forced to endure an undue hardship that would alter the fundamental nature of the business or would be disproportionately costly. The Eighth Circuit Court of Appeals, for example, held that a school for persons with mental retardation was not obliged to vaccinate employees in order reasonably to accommodate a student who was an active carrier of hepatitis B virus (Kohl v. Woodhaven Learning Center, 1989).

Conceptual Foundations of Disability Law

Conceptually, disability law follows two distinct traditions—equal treatment (based on civil rights law) and special treatment (based on social welfare law). The equal treatment perspective means that persons with disabilities should be treated as if their disabilities do not matter. Accordingly, the law mandates businesses, public accommodations, public services, transportation, and communications authorities not to discriminate. This concept of equal treatment is powerfully articulated in the law. At the same time disability law also requires special treatment. The law requires the aforementioned entities to adopt a concept of affirmative action that focuses on the person's disabilities, as well as on societal barriers to equal treatment (Feldblum, 1993). The ADA requires reasonable accommodations or modifications designed to enable or empower the person with disabilities to take his or her rightful place in society. The law, therefore, insists on special treatment when that is necessary to allow a person to perform a job, enter a public building, or receive public service. As the Supreme Court observed over two decades ago, "Sometimes the greatest discrimination can lie in treating things that are different as though they were exactly alike" (Jenness, et al. v. Fortson, p. 442).

Disability law, however, does not take either the equal treatment or the special treatment principle to its logical extension. With respect to equal treatment, the Supreme Court has dismantled the statute to such an extent that the ADA does not provide an effective remedy for many individuals with a disability. With respect to special treatment, the ADA does not allocate tax dollars to enable the person to participate equally in society, beyond use of government funds for reasonable accommodations in such areas as public transportation. Nor does it require covered entities to spend unlimited amounts to provide equal access and opportunities for persons with disabilities.

Conclusion: A New Vision

The ADA promised to revolutionize the way we view the law's protection and empowerment of persons with disabilities. No longer were we supposed to see persons with disabilities through the lens of charity, sympathy, or benign discretion. Now we were supposed to see persons with disabilities through the lens of civil rights law. Under civil rights law persons with disabilities should not have to not ask for societal favors. They should be able to demand an equal place in a society that has long been structured—physically and sociologically—by and for the able-bodied.

This promise and vision, however, have been sharply curtailed by the Supreme Court. It is no longer realistic to believe that persons with disabilities will receive the same kind of civil rights protection as, say, African Americans and women. For that to happen, Congress will have to amend the ADA to express the vision of true inclusion and protection against discrimination for all Americans with a disability.

lawrence o. gostin (1995)

revised by author

SEE ALSO: Access to Healthcare; Genetic Discrimination; Human Rights; Informed Consent; Law and Bioethics; Medicaid; Patients' Rights; Right to Die;Utilitarianism and Bioethics; and other Disability subentries

BIBLIOGRAPHY

Albertsons v. Kirkinburg. 527 U.S. 555 (1999).

Alexander v. Choate. 469 U.S. 287 (1985).

Americans with Disabilities Act of 1990. 42 U.S.C. 12101–12213 (Supp. II 1990).

Bowen v. American Hospital Association. 476 U.S. 610 (1986).

Bragdon v. Abbott. 524 U.S. 624 (1998).

Chevron U.S.A. Inc. v. Echazabal. 122 S. CT. 2045 (2002).

City of Cleburne, Texas v. Cleburne Living Center, Inc. 473 U.S. 432 (1985).

Civil Rights Act of 1964, codified as amended in scattered sections of 42 U.S.C. (1988).

D'Agostino, Thomas. 1997. "Defining 'Disability' Under the ADA: 1997 Update." National Disability Law Reporter Special Report No. 3.

DeShaney v. Winnebago County Department of Social Services. 489 U.S. 189 (1989).

Education for All Handicapped Children Act of 1975. 20 U.S.C. 1400 et seq. (1975).

Fair Housing Amendments Act of 1988. 42 U.S.C. 3601–3619 (1988).

Feldblum, Chai R. 1991. "The Americans with Disabilities Act: Definition of Disability." Labor Lawyer 7(1): 11–26.

Feldblum, Chai R. 1993. "Anti-Discrimination Requirements of the ADA." In Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans, ed. Lawrence O. Gostin and Henry Beyer. Baltimore, MD: Paul H. Brooks.

Feldblum, Chai R. 1996. "The (R) evolution of Physical Disability Anti-discrimination Law: 1976–1996." Mental and Physical Disability Law Reporter September–October: 613–625.

Gerben v. Holsclaw. 692 F.Supp. 557 (E.D.Pa. 1988).

Gostin, Lawrence O. 1987. "The Future of Public Health Law." American Journal of Law and Medicine 3–4: 461–490.

Gostin, Lawrence O. 1991a. "Genetic Discrimination: The Use of Genetically Based Diganostic and Prognostic Tests by Employers and Insurers." American Journal of Law and Medicine 17(1–2): 109–144.

Gostin, Lawrence O. 1991b. "Public Health Powers: The Imminence of Radical Change." Milbank Memorial Fund Quarterly 69(Supp. 1–2): 268–290.

Gostin, Lawrence O. 1993. "Impact of the ADA on the Health Care System: Genetic Discrimination in Employment and Insurance." In Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans, ed. Lawrence O. Gostin and Henry Beyer. Baltimore, MD: Paul H. Brooks.

Gostin, Lawrence O. 2002. "The Judicial Dismantling of the Americans with Disabilities Act." Hastings Center Report. November-December 20–22.

Gostin, Lawrence O., and Beyer, Henry, eds. 1993. Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans. Baltimore, MD: Paul H. Brooks.

Herr, Stanley S.; Gostin, Lawrence O.; Koh, Harold H., eds. 2003. Different but Equal: The Rights of Persons with Intellectual Disabilities. Oxford: Oxford University Press.

H.R. Conference Report no. 101–596. 102nd Cong., 1st Sess.(1990).

Individuals with Disabilities Education Act of 1992. 20 U.S.C. 1400 et seq. (1991).

Jenness, et al. v. Fortson. 403 U.S. 431 (1971).

Kohl v. Woodhaven Learning Center. 865 F.2d 930 (8th Cir. 1989).

New York State Association of Retarded Children v. Carey. 612 F.2d 644 (2d Cir. 1979).

National Council on Disability. 1997. Equality of Opportunity: The Making of the Americans with Disabilities Act. Washington, D.C.: National Council on Disability.

Parmet, Wendy E. 1990. "Discrimination and Disability: The Challenges of the ADA." Law, Medicine and Health Care 18(4): 331–344.

Rehabilitation Act of 1973. 29 U.S.C. 791–794. (1988 and Supp. I 1989).

School Board of Nassau County, Florida v. Arline. 480 U.S. 273 (1987).

Southeastern Community College v. Davis. 442 U.S. 397 (1979). S. Rep. no. 116. 101st Cong., 1st Sess. (1989).

Sutton v. United Airlines, Inc. 527 U.S. 471 (1999).

Toyota Motor Manufacturing Kentucky Inc. v. Williams. 534 U.S. 184 (2002).

West, Jane. 1993. "The Evolution of Disability Rights." In Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans, ed. Lawrence O. Gostin and Henry Beyer. Baltimore, MD: Paul H. Brooks.