The recent article by Michael Kinsley of Slate illustrates the continuing problem with use of the term “disability” in the ADA, a civil rights statute. The problem is highlighted in excerpts from the Michael Kinsley article.
“Making it illegal to discriminate against people with disabilities is a noble idea, but a peculiar one. After all, forbidding discrimination against people who possess a particular characteristic amounts to forbidding discrimination in favor of people who don’t possess that characteristic. If you outlaw discrimination against blacks, you are also outlawing discrimination in favor of whites.”
Here is the problem. The term “disability,” both historically and instinctively, means inability. However, in political and academic circles, it is well accepted that “disability” is not an inherent inability but rather the interaction between an impairment and societal barriers. This is called the “socio-political” or “civil rights” construct. It is this view of disability that was envisioned in the ADA.
At the time the ADA was enacted, we believed we were on firm ground in adopting the current definition because the U.S. Supreme Court had recognized the socio-political model of disability. The Court said in School Board of Nassau County v. Arline 480 U.S. 273 (1987) that the Section 504 definition (on which the ADA definition was based) “acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment” (at 284). The Court also recognized in Arline that an adverse employment decision may have nothing to do with the ability to perform the job. In discussing the “regarded as” prong of the definition, the Arline Court said, “Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment” (480 U.S. at 283). In fact, the very people that the Court in Arline recognized as subject to this kind of discrimination, i.e. people with cancer and epilepsy, would be stripped of coverage as a result of the Supreme Court’s recent decisions under the ADA (Sutton, Murphy, Kirkenburg, Williams).
We need to move away from an examination of the person adversely affected and concentrate instead on the reason for the adverse action. If the adverse action resulted from an impairment and if it is not related to the ability to do the job or other activity in question, then there is “discrimination” as provided by the ADA. The refrain that this approach is unworkable because “everyone will be covered” comes from the same people who made it their business to ensure that the statutes prohibiting race and sex discrimination applied to whites as well as blacks and men as well as women — “everyone.” Those statues delineate prohibited conduct and do not limit the people who can make a claim based on such conduct. The ADA should likewise prohibit decisions based on “impairment” and require that decisions be based on qualifications, as with the race and sex statutes.
Michael Kinsley’s bold statement that “the effort to protect disabled people from job discrimination without forcing employers to hire less-qualified candidates is inherently self-contradictory” is simply unfounded. As with all other civil rights laws, the stereotypes and fears related to a person’s “disability” may have nothing at all to do with the person’s abilities. In fact, such an educated person as Kinsley making this statement is perhaps the best argument for the ADA.
Arlene B. Mayerson, Directing Attorney, Disability Rights Education and Defense Fund, Berkeley, CA