DISABILITY DISCRIMINATION

DISABILITY DISCRIMINATION

Approximately 43 million people in the United States are physically or mentally disabled. Like individuals of various races, religions, genders,
and national origins, individuals with physical
or mental limitations historically have faced dis-
crimination in the forms of exclusion from
mainstream society; intentional and uninten-
tional SEGREGATION; unequal or inferior serv-
ices, benefits, or activities; and screening criteria
that do not correlate with actual ability. Legal
commentators have noted that the discrimina-
tion against DISABLED PERSONS differs from
other forms of discrimination in that a rational
basis for treating members of other excluded
groups differently rarely exists, whereas a per-
son’s disability might hinder his or her abilities
and might provide a rational basis for different
treatment. Thus, the mere fact that an individual
with a disability is treated differently is insuffi-
cient for a finding of illegal discrimination.
Another frequently noted difference
between discrimination based on disability and
discrimination based on race, color, religion,
gender, and national origin is the attitude
behind the discrimination. For example, dis-
crimination based on race tends to be rooted in
hostility toward a different race. On the other
hand, discrimination based on disability is often
caused by discomfort and pity, or misguided
compassion that materializes as paternalistic
and patronizing behavior. Other times, discrim-
ination against disabled persons is the result of
“benign neglect” and is “primarily the result of
apathetic attitudes rather than affirmative ani-
mus” (Alexander v. Choate, 469 U.S. 287, 105 S.
Ct. 712, 83 L. Ed. 2d 661 [1985]). For example, a
restaurant owner who fails to provide a wheel-
chair ramp to the restaurant’s entrance is more
likely to be guilty of failing to consider the needs
of patrons than of expressing a specific dislike of
wheelchair users.
Whatever its roots, discrimination impedes
those with disabilities from obtaining jobs that
they are qualified to perform; access to some
buildings and modes of transportation; and the
independence and dignity that nondisabled
people take for granted. The U.S. Constitution
provides little relief. Courts have held that men-
tally and physically disabled persons do not fall
within a suspect or quasi-suspect class (i.e.,
classes subjected to a history of purposeful
unequal treatment or political powerlessness).
This means that under the Constitution’s EQUAL
PROTECTION CLAUSE, courts review government
action affecting disabled people without the
heightened or STRICT SCRUTINY afforded sus-
pect or quasi-suspect classes formed by race or
religion.
This lack of distinct constitutional protec-
tion has resulted in legislative action. Following
a concerted LOBBYING effort by and on behalf of
individuals with disabilities, Congress in the late
1960s and early 1970s passed the first federal
laws designed to protect disabled persons.
Lobbying continued when these laws proved
to be inadequate owing to their limited cover-
age. Then, in 1990, Congress passed the much-
heralded Americans with Disabilities Act (ADA)
(42 U.S.C.A. §§ 12101–12213), legislation with a
much broader application and a fair amount of
controversy over the relative cost of its effective-
ness.
Rehabilitation Act of 1973
The Rehabilitation Act of 1973 (19 U.S.C.A.
§§ 791, 793, 794) prohibits disability discrimina-
tion by federal agencies, federal contractors, and
other recipients of federal financial assistance.
Types of prohibited discrimination include
employment; education; building accessibility;
and health, welfare, and social services. Courts
have held that private individuals may file
actions under the Rehabilitation Act against fed-
eral employers or against recipients of federal
financial assistance; the action need not be
brought by a government entity. A plaintiff who
proves that a federal employer discriminated
intentionally in violation of the Rehabilitation Act may receive compensatory and PUNITIVE DAMAGES.

What constitutes a disability under the
Rehabilitation Act is often the source of controversy.
Blindness, deafness, diabetes, cardiac
problems, mobility impairments, and chronic fatigue syndrome have been recognized as physical impairments. The U.S. Supreme Court has held that tuberculosis, a contagious disease, is a
physical impairment (School Board v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 [1987]). Numerous courts have followed the logic in Arline in holding that individuals who have AIDS or who have tested positive for HIV,
the virus that causes AIDS, are physically impaired. Courts also have held that alcoholism,
anxiety panic disorder, and post-traumatic stress disorder are impairments under the Rehabilitation Act.
Prior to the enactment of the Americans with Disabilities Act, section 504 of the Rehabilitation Act was the principal federal prohibition of discrimination on the basis of disability. Even with the ADA, the Rehabilitation Act remains an important protection for those with disabilities.
The ADA expressly excludes from its coverage protection against discriminatory acts by the federal government, so the Rehabilitation Act provides the only private CAUSE OF ACTION for disability discrimination by federal employers and agencies. The Rehabilitation Act also remains an alternative means of remedying discrimination
even when a plaintiff concurrently invokes ADA protection.

Individuals with Disabilities Education Act
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400–1485) requires states to provide a free, appropriate public education to children who are disabled. Formerly known as the Education of the Handicapped Act or the Education for All Handicapped Children Act, the law was established in 1975 in response to studies showing that more than half of all disabled children were receiving an inappropriate public education, and about one-eighth of those children were simply excluded from public education altogether.

IDEA requires states seeking federal financial assistance for education to develop plans ensuring disabled children a free education that meets their needs. IDEA covers children ages three to 21 who have educational disabilities—
in other words, mental retardation; hearing, speech, or language impairments; visual impairments;
serious emotional disturbances; orthopedic impairments; autism; traumatic brain injuries; and specific learning disabilities—and as a result of such conditions require special education
and related services such as transportation to and from school. The act does not, under normal
circumstances, cover a child who is nearsighted and needs glasses, or a child who walks with a leg brace; many children with minor disabilities can be educated without special attention.
Each child covered by IDEA is entitled to have an individualized educational program, or
IEP, developed jointly by the child’s parents and school personnel. The IEP describes the child’s abilities and needs, and outlines educational placement and services that will address the listed needs. IDEA contains procedural safeguards designed to ensure that parents can participate in the IEP process and have methods of
recourse if they disagree with educators about their child’s education.
Finally, IDEA supports the INTEGRATION of disabled children by requiring that they receive their education in the least restrictive environment.
The goal of this requirement is to keep children with disabilities in regular public school classrooms to the extent possible. Only when a satisfactory education cannot be achieved
in regular classes, even with the use of supplementary aids and services,may a disabled child be removed from regular classes. In many cases, children with disabilities are mainstreamed—placed in a regular educational setting—for part of their school day, and removed to a special-needs setting for the other part. Depending on the disability,
children may be mainstreamed into certain academic classes or simply during lunch,
during study hall, or on the school bus.

Architectural Barriers Act

The Architectural Barriers Act (ABA) (42 U.S.C.A. §§ 4151–4157) requires that federally owned, leased, or financed buildings be accessible to disabled persons. Originally enacted in 1968, this law requires each of four federal agencies—the DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, the DEPARTMENT OF DEFENSE, the GENERAL SERVICES ADMINISTRATION, and the Postal Service—to promulgate design, construction, and alteration standards for buildings within its jurisdiction.
The coverage, and thus the effectiveness, of the ABA is limited. The act encompasses the
subway system in Washington, D.C., as well as (1) structures that the federal government constructs or alters; (2) structures that the federal government leases; and (3) structures that depend on federal grants or loans for their design, construction, or alteration. If a federal agency is housed in a building that was constructed by the federal government prior to the ABA’s original enactment date in 1968, and that building is not altered, it need not be accessible to disabled individuals under the ABA. Further, when structures covered by the ABA are altered, only the altered portion need be made accessible.
Thus, an altered wing of a building may have elevators, wheelchair ramps, and accessible rest
rooms, whereas stairs in front of the building’s
entrance render the building inaccessible to
wheelchair users. Perhaps the most obvious
shortcoming of the ABA’s effectiveness is that it
covers only buildings that are owned, leased, or
financed by the U.S. government. Even after the
ABA’s enactment, individuals with disabilities
remained challenged by the many inaccessible
buildings not covered under it.
Americans with Disabilities Act
Despite the efforts of Congress, until 1990,
no federal law outlawed most of the disability
discrimination by employers, owners of places
of public accommodation, and program administrators.
During the late 1980s, two-thirds of
employable, working-age, disabled persons in
the United States had a job, and many of those
who were employed held a job far below their
actual capabilities. In the United States in 1990,
more than 8 million persons with disabilities
who wanted to work were unable to find jobs
and were forced to live on welfare and other government
subsidies funded by taxpayers.
Disabled individuals faced more obstacles
when it came to transportation. Because disabilities
often prevent people from driving cars,
many with disabilities must rely on buses, trains,
and subways. As of 1990, very few public modes
of transportation were accessible to those with
disabilities. That same year, Congress passed the
Americans with Disabilities Act in the hopes of
alleviating day-to-day problems faced by those
with disabilities.
Employment Discrimination and the ADA
Titles I and II of the ADA prohibit employers,
employment agencies, labor organizations, and
joint labor-management committees, in the private
sector and in state and local governments,
from discriminating on the basis of disability. At
the ADA’s effective date in July 1992, the act covered
private employers with 25 or more employees;
since July 1994, the act has covered private
employers with 15 or more employees. All state
and local government employers are covered,
regardless of their number of employees.
The EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION (EEOC) is the federal agency
charged with overseeing the employment-discrimination
provisions of the ADA. That agency
administers complaints and enforces the ADA.
The act also provides that its powers, remedies,
and procedures may be invoked by the EEOC,
the U.S. attorney general, and any person alleging
illegal discrimination pursuant to the ADA
or its underlying regulations. Any party seeking
redress for ADA-prohibited discrimination must
exhaust certain administrative remedies before
instituting a lawsuit.
The employment discrimination outlawed
by the ADA may take one of several forms explicitly
defined by the act: (1) limiting, segregating, or classifying job applicants or employees in a
way that adversely affects the status or opportunities
of a disabled individual; (2) entering into a
contract or business arrangement that has the
effect of discriminating against a disabled individual;
(3) implementing administrative procedures
or criteria that have the effect of
discriminating against a disabled individual;
(4) denying a disabled person equal jobs or benefits;
(5) failing to make reasonable accommodations
to allow those with disabilities to perform
their job in the workplace; (6) using criteria that
screen, or tend to screen, disabled individuals
from the workplace; and (7) administering
employment tests for the purpose, or partial purpose,
of measuring a job applicant’s disabilities.
In determining whether illegal discrimination
has occurred under the ADA, it is irrelevant that
the employer did not intend to discriminate. But
discriminatory actions are permissible if they are
job related and necessary for the business, and if
the required job performance cannot be accomplished
with reasonable accommodation.
Reasonable accommodation can be modifications
or adjustments to the job application
process, to the work environment, or to the
manner or circumstances under which the job is
performed. The ADA does not require an
employer to reasonably accommodate an
employee who does not make his or her disability
known to the employer, and unless it is obvious,
the employer may legally require documented
proof of a disability before accommodating it.
Examples of reasonable accommodation include
making work areas, and nonwork areas such as
lunch rooms and rest rooms, accessible; modifying
work schedules; modifying equipment such
as computers and desks; and providing interpreters
for blind or deaf workers. An accommodation
that imposes an undue hardship, causing
the employer significant difficulty or expense, is
not a reasonable accommodation. An accommodation
that fundamentally alters the business
is also not reasonable. For example, a nightclub
would not be forced to provide bright lighting
for a visually impaired employee, because bright
lighting would significantly alter the nightclub’s
business. An employer is not responsible for
providing personal items of accommodation
such as eyeglasses, leg braces, and prostheses,
nor is an employer responsible for accommodating
current users of illegal drugs. But the
ADA does protect rehabilitated drug users and
rehabilitated and nonrehabilitated alcoholics,
provided that the employees do not threaten the
employer’s property or the health and safety of
others in the workplace.Whether an accommodation
is reasonable is, under the ADA, determined
on a case-by-case basis, considering all
relevant factors including hardship and cost to
the employer.
The ADA does not require employers to
accommodate every individual with a disability.
Only qualified individuals with disabilities—
disabled individuals who can perform, with or
without reasonable accommodation, the job’s
essential functions—are protected from discrimination.
Two factors are involved in the
determination of whether a disabled individual
is qualified. First, the employer must determine
whether the individual satisfies the job prerequisites
at the time of the hiring decision. This
determination should not be based on speculative
fears that the employee will not be able to
function on the job, or that the employer’s
insurance premiums will rise. Second, the
employer must determine whether the individual
can perform the job’s essential functions
with or without reasonable accommodation.
The essential functions of a job are tasks that are
fundamental as opposed to marginal. Written
job descriptions are frequently considered relevant
evidence of essential functions.
To ensure that employers do not consider a
person’s disability at the time of hiring, the ADA
prohibits employers from inquiring about disabilities
or conducting medical examinations of
prospective employees before hiring them. It is illegal to ask questions about medical history,
prior WORKERS’ COMPENSATION claims, and
overall health before a hiring decision is made.
The employer is permitted to inquire about the
applicant’s abilities as they relate to essential or
nonessential job functions—although refusing
to hire an applicant because of his or her inability
to perform a nonessential job function is
prohibited. Upon extending a job offer, the
employer may require the prospective worker to
submit to a medical examination, provided that
all prospective workers face the same requirement.
In fact, a job offer may be conditioned
upon the results of the examination, and the
employer may rescind the offer if the examination
indicates that the prospective worker would
pose a direct threat to health or safety in the
workplace, or that he or she would not be able to
perform the job’s essential functions even with
reasonable accommodation. The ADA does not
consider tests for illegal drugs to be within its
definition of a medical examination; therefore,
before extending a job offer, employers may test
applicants for illegal drugs—but not prescription
drugs or alcohol. An employer may legally
test for HIV only after an employment offer has
been extended. Even then, the employer may not
fire or refuse to hire an individual because of
that person’s HIV status, unless such discrimination
is both related to the job and necessary
for the business.
When an employer violates the ADA, the
aggrieved party usually is entitled only to equitable
relief, such as a court order requiring the
construction of wheelchair ramps or the provision
of voice-activated computers. Only when
the employee shows intentional discrimination
may compensatory or punitive damages be
awarded. Where the dispute involves the provision
of a reasonable accommodation, and the
employer made GOOD FAITH efforts to make
reasonable accommodation, the court may not
award money damages; it may award only equitable
relief.
Public Accessibility and the ADA Title II of
the ADA requires that state and local government
programs and activities be accessible to those
with disabilities. Title III of the ADA applies the
same requirement to certain private entities that
own, lease, or operate places of public accommodation:
(1) hotels, motels, and certain other
places of lodging; (2) restaurants, bars, and other
establishments that serve food or drink; (3) theaters,
stadiums, concert halls, and other places of
exhibition or entertainment; (4) auditoriums,
convention centers, and lecture halls; (5) retail or
rental establishments such as grocery stores, bakeries,
shopping centers, and hardware stores;
(6) self-service laundries, dry cleaners, banks,
hair salons, travel services, shoe repair services,
gas stations, law offices, accounting offices, pharmacies,
doctors’ offices, hospitals, and other service
establishments; (7) public transit stations
and depots; (8) museums, libraries, and galleries;
(9) parks, zoos, and other places of recreation;
(10) private schools; (11) day care centers, homeless
shelters, food banks, and other social-service
establishments; and (12) health clubs, gymnasiums,
bowling alleys, golf courses, and other
places of exercise or recreation. The ADA does
not limit its coverage to the size of the public
accommodation; if a private entity fits into one
of the twelve descriptive categories, it must comply
with the ADA accessibility requirements. The
ADA does exempt from its coverage some private
clubs and religious entities.
When a private entity falls within a class of
public accommodation, it must provide reasonable
modifications in its practices, policies, or
procedures, or auxiliary aids and services, for
those with disabilities, unless such modifications
would fundamentally alter the nature of
the entity or would result in an undue burden of
significant difficulty or expense. Title III
requires only that those with disabilities be given
equal opportunities to achieve the same results
as nondisabled individuals. For example, a
clothing store need not print price tags in braille
so long as a sales clerk is available to read the
price tags to a blind shopper.Auxiliary aids, such
as closed-captioned televisions for hearingimpaired
hotel guests, are required, but this provision
is often flexible. Thus, the owner or
operator of a public accommodation may often
determine the type of auxiliary aid to assist the
disabled individual, provided that the chosen
aid is effective.
Title III also requires the owners and operators
of public accommodation in existing facilities
to remove structural, architectural, and
communication barriers when such removal is
“easily accomplishable and able to be carried out
without much difficulty and expense” (42
U.S.C.A. § 12181(9)). To determine whether
barrier removal is readily achievable, courts look
at the nature and cost of the action needed; the
number of people employed at the facility and
its financial resources; the action’s effect on the facility; and the size, nature, type, and financial
resources of the covered entity. Under Title II,
state and local governments must remove barriers
unless the removal would cause a fundamental
alteration to the program or activity, or
unless it would cause the government entity an
undue financial and administrative burden.
A private individual may enforce the provisions
of Title III, as may the U.S. attorney general.
To enforce the provisions of Title II, a
private individual may file an administrative
complaint with the appropriate federal agency
(usually the agency that provides federal funding
to the public entity that is the subject of the
complaint) or the U.S. DEPARTMENT OF JUSTICE,
or the individual may file a federal lawsuit.
On May 29, 2001, the U.S. Supreme Court
ruled 7-2 that federal disability rights law entitled
professional golfer Casey Martin to ride a golf
cart among shots while competing in PGA Tour
events, PGA Tour, Inc. v. Martin, 532 U.S. 661,
121 S.Ct. 1879, 149 L.Ed.2d 904 (U.S.Or., May
29, 2001) (NO. 00-24). In reaching its decision,
the Court addressed two distinct legal issues, ruling
that the PGA tour is a “public accommodation”
subject to ADA requirements, and that
under those requirements Martin’s use of a cart
was a “reasonable modification.” The decision
was the first high court case to interpret the nondiscrimination
mandate of Title III of the ADA.
The ADA and Public Perception Many
individuals with disabilities credit the ADA with
helping them to overcome the special challenges
that they face from day to day. From the visually
impaired social worker who is able to take his
licensing test in braille, to the wheelchair user
who is able to park her car just a few yards from
her office’s entrance, the ADA has helped many
disabled people to become fully functioning
members of society. But not everyone heralds
the act, particularly when the price of compliance
outweighs the legislation’s effectiveness.
Business owners complain that they have to
make their buildings accessible even when those
buildings are never used by disabled individuals.
Between 1990 and 1995, local governments
within Orange County, Florida, spent more than
$2 million on architectural changes to make
buildings accessible. The city of Winter Park,
Florida, spent approximately $35,000 to make a
new tennis facility that would be accessible to
the disabled, yet the facility’s manager reported
that only one disabled person used the building
in the first year after it opened.
Other critics of the ADA contend that the
law is draining administrative and legal
resources. During the first three years following
the effective date of the ADA’s employment provisions,
the EEOC reported a 25 percent increase
in its workload owing to ADA-related complaints.
About 20 percent of those complaints
were found to be without merit. By the early
1990s, the act had done little to improve the
employment rate for those with disabilities.
According to figures by the National Organization
on Disability, a private group, as of December
1993, 31 percent of working-age disabled
people were employed, whereas in 1986, prior to
the ADA’s enactment, 33 percent were
employed. More recent figures indicate that
employment and opportunities for disabled persons
are on the rise.
Some legal commentators argue that the act
is new and evolving. As courts interpret the law
and Congress fine-tunes it, the ADA’s benefits
will become clearer. Peter David Blanck, a fellow
at the Annenberg Washington Program, has
stated that people with disabilities are not the
only beneficiaries of the ADA. Businesses have
found a new market, and new technology developed
to help those with disabilities often helps
the nondisabled as well.
Restrictions on ADA Application
Defining Disability In Sutton v. United Airlines,
527 U.S. 471, 119 S.Ct 2139, 144 L.Ed.2d
450 (1999), the U.S. Supreme Court held that for
the purposes of the Americans with Disabilities
Act, whether a person has a disability is to be determined based on the person’s condition
when that person uses corrective measures. The
case concerned two women who had been
denied positions as airline pilots because they
each had extremely poor vision when they were
not wearing glasses. The Court held that because
the women had perfect vision when wearing
glasses, they were not disabled and thus not protected
by the ADA. It stated that “if a person is
taking measures to correct for, or mitigate, a
physical or mental impairment, the effects of
those measures, both positive and negative,
must be taken into account when judging
whether that person is substantially limited in a
major life activity and thus disabled under the
[ADA].” That is, to determine whether someone
is disabled, ask whether her physical or mental
impairment, when mitigated by medication or
other corrective devices, substantially limits her
ability to perform major life activities.
In Toyota Motor Manufacturing v. Williams,
534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615
(U.S., Jan 8, 2002) (NO. 00-1089), the high court
further narrowed the standard for establishing
that one has a disability covered under the ADA.
In that case, Ella Williams, an assembly line
worker in a Toyota automobile-manufacturing
plant, developed severe carpal tunnel syndrome
from her job. Her physician imposed limitations
on her manual activities, disqualifying her from
most of the assembly jobs in the plant. Toyota
eventually accommodated her by assigning her
to a lighter-duty unit but later required her to
rotate to an additional job station, where she
had to work at regular intervals with her hands
and arms above shoulder height. Her disabling
symptoms reappeared and worsened, but her
request to be returned to her original accommodation
was denied. She became unable to work
and lost her job soon afterward. The court ruled
that under the ADA, the inability to perform
occupation-specific tasks does not necessarily
mean that employee is substantially limited in
performing a major life activity.
Damage Limitations In Barnes v. Gorman,
536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230
(U.S., Jun 17, 2002) (NO. 01-682), the U.S.
Supreme Court declared that persons excluded
by local governments from programs funded
with federal dollars may not receive punitive
damages, no matter how egregious the discrimination
that they have suffered. In that case, Jeffrey
Gorman, who was confined to a wheelchair,
was arrested one night in Kansas City,Missouri,
and transported in a city police van that did not
have the right equipment to take him safely. He
sustained serious injuries, which prevented him
from further gainful employment. At trial, the
jury learned that the police department had
failed to comply with the Rehabilitation Act
since its passage in 1973, and even worse, it had
done nothing after Gorman was hurt to prevent
further injuries. A federal appeals court upheld
the jury’s damages award of more than $2 million.
Local officials appealed the punitive damages
portion, about half the total award, to the
U.S. Supreme Court, arguing that punitive damages
for disability discrimination could bankrupt
city governments. Several groups, including
AARP, pointed out that in Gorman’s case, and
other instances of egregious, intentional discrimination,
punitive damages serve the worthy
goals of deterring illegal conduct and compensating
victims for their unneeded suffering. The
U.S. Supreme Court reversed in a decision
reflecting that neither the Rehabilitation Act nor
the ADA permits an award of punitive damages
in cases of access to public services.
Eleventh Amendment Issues In University
of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct.
955, 148 L.Ed.2d 866 (U.S.Ala., Feb 21, 2001)
(NO. 99-1240), Respondents Garrett and Ash
filed separate lawsuits against petitioners,
Alabama state employers, seeking money damages
under Title I of the ADA. In an opinion disposing
of both cases, the District Court found
that the ADA exceeds Congress’s authority to
abrogate the State’s ELEVENTH AMENDMENT
IMMUNITY. The Eleventh Circuit reversed on the
ground that the ADA validly abrogates such
immunity. The U.S. Supreme Court held that
suits in federal court by state employees to
recover money damages by reason of the state’s
failure to comply with Title I of the ADA are
barred by the Eleventh Amendment.

FURTHER READINGS
Jones, Nancy Lee. 2003. The Americans with Disabilities Act
(ADA): Overview, Regulations, and Interpretations. New
York: Novinka Books.
Gaskill, Ricca. 1994. Americans with Disabilities Act: An
Analysis of Developments Relating to Disability Law. New
York: Practising Law Institute.
Poston, Sarah. 1994. “Developments in Federal Disability
Discrimination Law: An Emerging Resolution to the
Section 504 Damages Issue.” 1992/1993 Annual Survey
of American Law 419.

CROSS-REFERENCES
Acquired Immune Deficiency Syndrome; Equity.