See the original article in the San Francisco Chronicle.
For millions of disabled Americans, the U.S. Supreme Court has become chilly — some would say hostile — terrain.
Four rulings in disability cases during the 2001-02 term, all of which went against the disabled, continued a trend that started in 1999, when the court took its first whack at the broadly worded Americans With Disabilities Act.
The 1990 law prohibited discrimination against the disabled in public and private employment, required employers to provide accommodations that allow them to keep working, and guaranteed them equal access to government programs and services such as parks and public buildings.
Disability rights groups say the court has limited the ADA’s scope so much in the past few years that they now rely almost entirely on California law, which is broader, to protect the disabled in the workplace. That option is not available in most states, which have less protective laws, advocates say.
Ruling mostly in employment cases, the Supreme Court has crafted a narrow definition of the disabled — most recently when it said in January that an assembly-line worker sidelined by carpal tunnel syndrome was not disabled as long as she could engage in everyday activities, such as doing household chores and brushing her teeth.
In that ruling, the justices also hinted strongly that they did not consider working at a job to be a “major life activity” — a prerequisite for ADA coverage — and were prepared to rule in the future that a person should not be considered disabled merely because he or she could no longer work.
“It’s a shorthand way of saying they don’t expect most disabled people to work,” said Andrew Imperato, president of the 28,000-member American Association of People with Disabilities. “That turns the ADA on its head.”
The court has also prohibited federal damage suits by disabled state government employees, and this month unanimously barred punitive damages against local governments for willful ADA violations.
And in another ruling this month that advocates for the disabled called perhaps the most painful of all, the court said employers, not employees, had the power to decide when a job was too dangerous for the disabled.
In that case, the court said an oil refinery could deny a job to a worker with a liver disease that might make him vulnerable to toxic infections, provided the refinery based its decision on objective medical evidence. The worker denied he was at risk and said the decision should be his to make.
That ruling touched “the core of (disabled) people’s experiences,” said Arlene Mayerson, directing attorney at the Disability Rights Education and Defense Fund in Berkeley. “People are always trying to protect them. . . . It’s one of the most insidious ways people with disabilities have been excluded.”
The case is only the latest illustration that “so many things we thought we had accomplished in the ADA are not there,” said Mayerson, who took part in negotiating and drafting the 1990 law.
But Palo Alto lawyer Fred Alvarez, who represents employers and is a former high-ranking federal official, said the Supreme Court justices are simply bringing some coherence to the law.
“They’re looking at a statute that can be read to cover almost everyone in the country,” said Alvarez, who served on the U.S. Equal Employment Opportunity Commission and was an assistant labor secretary overseeing disability programs, both under President Ronald Reagan. “They’re saying Congress could not have intended that.”
Another management-side lawyer, Douglas Dexter of San Francisco, said the court is keeping the definition of disability “quite narrow, the narrowest you could interpret it within the language of the statute.”
He said the reason is that the court is trying to limit the impact of the “fairly dramatic requirement that’s being imposed on employers” to accommodate the disabled under the ADA.
The assessments by Alvarez and Dexter are consistent with recent statements by Justice Sandra Day O’Connor.
Speaking this March to a group of business lawyers, O’Connor said the ADA illustrated what happens when a bill’s sponsors “are so eager to get something passed that what passes hasn’t been as carefully written as a group of law professors might put together,” according to an account in the Washington Post.
“That act is one of those that did leave uncertainties as to what Congress had in mind,” she said. Two months earlier, in the ruling on carpal tunnel syndrome, O’Connor wrote that the ADA’s definition of disability “must be interpreted strictly to create a demanding standard.” Otherwise, she said, the number of disabled Americans would be much higher than the 43 million estimated by Congress when it passed the law.
O’Connor was also the principal author of the court’s 1999 rulings that first limited the disability definition by excluding people whose conditions — high blood pressure or nearsightedness, for example — could be remedied. The rulings, like the carpal tunnel case, meant that employers could deny jobs to people because of their conditions and have no duty to accommodate them.
“The way they’re going, there are not going to be 43 million Americans protected, only those with the most traditional disabilities, like wheelchair users, blind people and deaf people,” said Larry Paradis, legal director of Disability Rights Advocates in Oakland.
Chai Feldblum, a Georgetown University law professor who was one of the chief drafters of the ADA, said its language was modeled after a 17-year-old disability law that had been interpreted to cover not only traditional categories but also conditions like epilepsy and bad backs, largely excluded by rulings of the last few years. “It never occurred to us that those words would be applied with such constricted interpretations,” she said. “Congress intended to cover people with a range of health conditions without much lawyer time spent on how disabling the impairment was.”
On the employers’ side, attorney Alvarez said the court was upholding congressional intent. He noted that the ADA, unlike other civil rights laws, requires employers to work with employees on adjustments that might keep them on the job, like adaptive equipment and new assignments.
The court is “just trying to make sure it isn’t used in so many circumstances that it becomes meaningless,” he said. “Truly disabled people need that process. You don’t want it diluted.”
Lawyers on both sides say the Supreme Court rulings underscore the importance of California’s disability rights law, which covers a wider range of conditions than the court-interpreted ADA and contains none of the court’s restrictions on damage suits.
The nation’s high court has not yet accepted any ADA cases for review in the term that starts in October, though lawyers for Disability Rights Advocates spoke nervously about a Cleveland case that could give the justices a chance to further restrict ADA suits against states.
Looking ahead more hopefully, the plaintiffs’ lawyers recalled 1987 and 1991, when Congress rewrote laws on sex and race discrimination to undo restrictive Supreme Court rulings.
Said Paradis of Disability Rights Advocates: “It may be time for an ADA Restoration Act.”