Discrimination and Disability: The Challenges of the ADA

P.L. 101–336, 104 Stat. 327 (1990) (hereinafter “ADA”).

Bureau of National Affairs, “Bush signs Disabilities Act at White House,” Washington Insider, July 27, 1990 at 2.

ADA, Sec. 2(a)(1).

29 U.S.C.A. Sec. 701 et. seq. (1990). Other statutory precedents include the Architectural Barriers Act of 1968, 42 U.S.C. Sec. 4151 et seq. (1982); the Civil Rights Act of 1964, 88–352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.); the Civil Rights Restoration Act 1987, P.L. 100–259, 102 Stat. 28 (1988) (codified in scattered sections); The Education for All Handicapped Children Act, 20 U.S.C. Sec. 1401 et seq. (1988); and the Fair Housing Amendments Act of 1988, 42 U.S.C.A. 3601 et seq. (1989).

29 U.S.C. Secs. 791,793 (1988).

29 U.S.C. 794 (1988).

This problem was partially reduced by the Civil Rights Restoration Act of 1987 which clarified that Sec. 504 was triggered as long as a part of a program received federal financial assistance, even if that part of the program was not the one at issue. 29 U.S.C. Sec. 794 (1988).

Gostin Larry , “Public Health Strategies for Confronting AIDS,” Journal of the American Medical Association, 261 (Mar. 17, 1989): 1628.

Sen. Rpt. 101–116, Committee on Labor and Human Resources, Report on S. 933, 101 Cong., 1st Session (1989), 18–19 (hereinafter “Sen. Rpt.”).

Parmet Wendy E. , “An Anti-discrimination Law: Necessary But Not Sufficient,” in Gostin L. , ed., AIDS and the Health Care System, (New Haven: Yale University Press, 1990); Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic, (Washington D.C.: Government Printing Office, 1988), 121.

The political virtue of the ADA is that it responds to the problem of discrimination against HIV positive individuals without mentioning AIDS, tying protections for persons infected with HIV to protections for more traditional, less politically controversial groups with disabilities, such as the blind.

The ADA uses the term “disabled” to conform with current terminology. The Senate Committee has made clear the change in nomenclature is not of substantive import. Sen. Rpt. 101–116, at 21.

ADA, Sec. 3(2).

Many cases have found HIV positive individuals handicapped within the meaning of the identical Rehabilitation Act language. E.g., Chalk v. United States Dist. Ct., 840 F. 2d 701 (9th Cir., 1988); Doe v. Dolton Elem. Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill., 1988), cert. denied, U.S., 110 S.Ct. 239 (1989). In addition, the ADA's legislative history makes clear that an HIV positive individual would be disabled within the meaning of the ADA. Sen. Rpt. at 22; House Rpt. 101–485 Pt. II., Report of Committee on Education and Labor, 101 Cong., 2nd Sess. (1990) (hereinafter “House Rpt. Pt. II), at 52.

E.g., Kohl v. Woodhaven Learning Ctr., 865 F.2d. 930 (8th Cir.), cert. denied, U.S., 110 S.Ct. 239 (1989) (Sec. 504 case).

House Rpt. Pt. II at 51.

ADA, Sec. 511(a). The exclusion of homosexuality is justified in the statute by the statement that homosexuality is not an impairment. This is true, but also a marvelously clever result, placating both those opposed to antidiscrimination protection for homosexuals and those who support homosexual rights. The statutory compromise is also disingenuous because except in the case of homosexuality and other explicitly excluded conditions, the statute applies not only to those who are impaired but to those who are perceived as impaired. ADA, Sec. 3(2)(c). Thus the focus should be on the perceptions, however erroneous, of those engaging in the discrimination, which in the case of homophobia, might include the perception that homosexuality is a disease. See School Board v. Arline, 480 U.S. 273, 282 (1987) (discussing the applicability of Sec. 504 to cases in which an individual is wrongly perceived as impaired); House Rpt. Pt II at 53 (adopting Arline rationale, but not recognizing its applicability to homosexuality).

ADA, Sec. 511(b) excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance use disorders resulting from current illegal use of drugs.”

ADA, Sec. 510(a). In addition, the ADA amends the Rehabilitation Act to conform the latter's coverage of alcohol and drug abuse to the ADA's. ADA, Sec. 512.

ADA, Sec. 510(b).

ADA, Sec. 104 (d)(2).

ADA, Sec. 3(2).

E.g. Persinger v. City of Huntington Police Pension Bd., 840 F.2d 11 (table) (4th Cir. 1988) (unpublished) (Westlaw: All Feds) (Rehabilitation Act case); House Rpt. Pt. II at 53.

House Rpt. Pt. II at 51.

Recognizing the definitions's breadth both the Senate and House Reports attempt to limit the category by specifying that environmental, cultural or economic conditions in themselves are not disabilities. Sen. Rpt. at 22; House Rpt. Pt. II at 51–52. Of course, the lines between social and biological conditions are not always so clear. See text accompanying notes 67–9, infra.

ADA, Secs. 101(2), 101(5)(a), 102(a), and 108. The title does not apply to the United States or a bona fide private membership club exempt from taxation under Sec. 501(c) of the Internal Revenue Code. ADA, Sec. 101(5)(b).

ADA, Sec. 107(a). These include administrative action by the Equal Employment Opportunity Commission or a parallel state agency, plus a private action for back pay or reinstatement. 42 U.S.C. Sec. 2000e-5 (1982).

Last fall the President vetoed and the House sustained the veto of the Civil Rights Act of 1990, which would have amended the remedies available under Title VII and thereby the ADA. 136 Cong. Rec. D. 1405 (Oct. 24, 1990). A substantially similar bill, the Civil Rights Act of 1991, was reintroduced this year as H.R. 1, 102nd Cong., 1st Sess. (1991).

ADA, Sec. 102. The parallel provision in the Rehabilitation Act applies only to “otherwise qualified individuals,” 29 U.S.C. Sec. 794 (1988).

ADA, Sec. 101(8).

29 U.S.C. 794 (1988). The Rehabilitation Act itself does not require “reasonable accommodations.” That concept derives from Department of Health and Human Service regulations, 45 C.F.R. 84.3(K)(1)(1989), and has been applied by the courts. Wendy E. Parmet, “AIDS and the Limits of Discrimination Law,” Law, Medicine and Health Care 15 (1987) (1–2): 63.

House Rpt. Pt. II at 55.

ADA, Sec. 103(a).

ADA, Sec. 103(b).

ADA, Sec. 101(9). See text accompanying notes 77–94, infra.

Wards Cove Packing Co., Inc. v. Atonio, U.S., 109 S.Ct. 2115 (1989).

See text accompanying notes 106–112, infra.

Parmet Wendy E. , supra note 10, at 86. It is not entirely clear whether a carrier of a gene who is not yet ill, but merely has an increased statistical probability of illness, would be disabled. Such a carrier is not yet impaired. On the other hand, she may be perceived as impaired, or be impaired by the discrimination her status engenders. Under the reasoning of School Board v. Arline, 480 U.S. 273, 282 (1987), such a person should probably be considered disabled. See also note 17 supra.

ADA, Sec. 102(c)(4)(a). The Act appears to allow a broader medical examination of new employees, who have been given a conditional offer, when the examination is given to all applicants and is job-related and certain confidentiality conditions apply. ADA, Secs. 102(c)(2). Prior to granting a conditional offer, an employer may not examine an applicant, but may make an “inquiry” into the ability of the applicant to perform job-related functions ADA, Sec. 102(c)(2).

909 F.2d 820 (5th Cir. 1990).

Id. at 827–30. The court also found that Leckelt was not dismissed “solely because of his handicap,” but rather because of his refusal to follow hospital policies. Since the hospital policy at issue disparately impacted upon the disabled, the court's attempt to distinguish the grounds of dismissal from a discriminatory policy seems shaky at best.

Id.

ADA, Sec. 501(c). Under ERISA, a company cannot refuse to hire or discharge an individual merely to deny a benefit. 29 U.S.C. Sec. 1140(1982).

ADA, sec. 202. Sec. 203 states that the remedies for this violation follow those available under Sec. 504, presumably including a private right of action. Miener v. Missouri, 673 F.2d 969, 973 (8th Cir.) (citing cases), cert. denied, 459 U.S. 909, 459 U.S. 916 (1982). The ADA also authorizes the Attorney General to promulgate enforcement regulations consistent with those in effect under Sec. 504. ADA, Sec. 204. Sec. 202 goes into effect 18 months after the enactment of the Act. ADA, Sec. 205.

Sec. 202 also deviates from 504 by not limiting its coverage to discrimination “solely on the basis of handicap.” Compare 29 U.S.C. Sec. 794 (1990).

The ADA's provisions apply to public buses, trains, taxis and limousines, but not to air carriers regulated by the Air Carriers Access Act, 49 App. U.S.C. 1301, et. seq. (1982).

See text accompanying notes 85–89, 126–128, infra.

ADA, Sec. 302(a). Title III is generally effective 18 months after the Act's enactment, although several provisions are effective immediately. Sec. 310.

ADA, Sec. 308(9) (incorporating the remedies available under 42 U.S.C. 2000a-3(a)(1982)). These remedies include a private action. The ADA, however, prohibits private actions for any violations of Sec. 302 (except concerning new construction) for 24 months for businesses with less than 25 employees and gross receipts of 1 million dollars or less, and for thirty months for businesses with less than 10 employees and gross receipts of 500,000 dollars or less. ADA, Sec. 310.

ADA, Sec. 308.

42 U.S.C. Sec. 2000a (1982).

Housing is covered by 42 U.S.C.A. 3601 et seq. (1989).

The ADA defines the term “public accommodation” by listing a large variety of covered activities and stating that each list is not exclusive. ADA, Sec. 301(7).

ADA, Sec. 301(7)(f).

See text accompanying notes 140–144, infra.

ADA, Sec. 302 (b)(2)(A).

ADA, Sec. 302(b)(2)(A)(ii).

ADA, Sec. 302(b)(2)(A)(ii).

ADA, Sec. 401(a).

ADA, Sec. 401.

Sec. 509 of the Act provides non-judicial remedies to the disabled who are discriminated against by members of Congress with respect to employment.

In addition to the remedies discussed, the Act waives sovereign immunity, and allows attorneys fees to all prevailing parties (presumably including defendants), even against the United States. ADA Secs. 502, 505.

Brown Judith Olans Parmet Wendy E. Baumann Phyllis Tropper , “The Failure of Gender Equality: An Essay in Constitutional Dissonance,” Buffalo Law Review, 36(1987): 573, 583–84.

Parmet Wendy E. supra note 31, at 62.

ADA, Sec. 2(a)(9).

House Rpt. p. II at 30.

Id. at 29.

Without such impairments, the person would not be disabled within the meaning of the ADA. Wendy E. Parmet, supra note 31, at 63–64.

ADA, Sec. 2(a)(1).

House Rpt. Pt. II at 51. Thus until 1981, HIV infection was unrecognized, while today it is both common and commonly accepted to be a disability.

The ADA recognizes that disability becomes more frequent with age. ADA, Sec. 2(a)(1).

This is increased by the statute's inclusion of those who are merely perceived, even falsely, of being disabled, or those who merely have a record of so being. ADA, Sec. 3(2)(c).

The ADA assumes that the determination of disability is to be made prior to a decision whether reasonable accommodations exist, in other words, prior to an assessment of the social structure. House Rpt. Pt. II at 52. This misses the point. Our ability to perform major life functions cannot be measured in the abstract but only in relation to social structures. Without glasses, the mildly myopic would be disabled. It is the ready availability and social acceptance of glasses that render them able-bodied.

45 C.F.R. 84.3(k)(1)(1989); 480 U.S. at 287.

20 U.S.C. Sec. 1401 et seq. (1988); 42 U.S.C.A. Sec. 3604 (1990).

42 U.S.C.A. Sec. 3601 (1989).

ADA, Sec. 102(b)(5)(A).

ADA, Sec. 101(9).

The legislative history states that restructuring need not go so far as to require an employer to “fundamentally alter the essential functions of the job in question.” House Rpt. Pt. II at 64.

Alexander v. Choate, 469 U.S. 287, 308 (1985).

If, after reasonable accommodations, the employee cannot perform an essential job function, the employee is not qualified within the meaning of ADA, Sec. 101(8).

“Undue hardship” is defined as the imposition of “significant difficulty or expense” determined in light of several factors listed in the statute pertaining to the nature of the accommodation and its impact on the employer. ADA, Sec. 101(10).

House Rpt. Pt. II at 68. The House Report states that the term “undue hardship” and the reasonable accommodation standard should be construed in light of regulations issued under Sec. 504. Id. at 67, citing 42 Fed. Reg. 22676 et. seq. (May 4, 1977). The case law under the Rehabilitation Act, however, was far more solicitous of employer interests than are the regulations or the ADA. 469 U.S. at 308; Southeastern Community College v. Davis, 442 U.S. 397 (1979).

ADA, Sec. 302(b)(2)(A)(iii).

ADA, Secs. 222, 226, 227(a)(2)(A).

ADA, Sec. 227(as).

ADA, Secs. 227(b), 231.

ADA, Sec 242(e)(2).

ADA, Sec. 223(a).

Although prior acts required some accessibility in federally funded transit facilities, none went as far nor were as detailed as the ADA. E.g., 49 App. U.S.C. 1612(1982). The pre-ADA regulations under Sec. 504 and other statutes are primarily at 49 C.F.R. Pt. 27 (1989). They impose generalized nondiscrimination standards, but lack the detail or extraordinary affirmative restructuring required by the ADA.

ADA, Sec. 242(e)(2).

ADA, Sec. 303(a)(1). This standard need not be met where it is “structurally impossible” to do so.

ADA, Sec. 303(b).

ADA, Sec. 401.

401 U.S. 424, 431 (1971).

Id. at 432.

Id.

469 U.S. at 295.

Id. at 297.

Id. at 298–99.

Id. at 301.

Brennan v. Stewart, 834 F2d. 1248 (5th Cir. 1988). Other courts have held that once the plaintiff shows that a reasonable accommodation was available, the defendant bears the burden of justifying prior criteria as a business necessity. E.g., Davis v. Frank, 711 F. Supp. 447 (ND Ill. 1989).

U.S., 109 S.Ct. 2115 (1989).

109 S.Ct. at 2126.

The Civil Rights Act of 1991 would override this holding, if it is enacted. See note 28 supra.

H. Rpt. Pt. II at 61.

ADA, Sec. 102(b)(3).

ADA, Sec. 102(b)(6).

ADA, Sec. 103(a).

ADA, Sec. 302(b)(2)(A)(iv).

ADA, Sec. 303(a)(1).

See text accompanying note 19 supra.

See note 18, infra. The Act also excludes current users of alcohol from many of its employment protections. ADA, Sec. 104(c).

Sen. Rpt. at 22; House Rpt. Pt. II at 51–52.

480 U.S. 273(1987).

ADA, Secs. 103(b); 302(b)(3).

ADA, Secs. 101(3); 302(b)(3). This is in clear contrast to the standard employed in Leckelt. See accompanying notes 40–42 supra.

Chalk v. United States Dist. Ct., 840 F. 2d 701 (9th Cir. 1988).

E.g., 136 Cong. R. S 9681 (July 13, 1990) (remarks of Sen. Kennedy); 136 Cong. Rec. H. 4626 (July 12, 1990) (remarks of Rep. Waxman).

In the medical setting there is a slight risk of transmission. Mishu B. , “A Surgeon with AIDS: Lack of Evidence of Transmission to Patients.” Journal of American Medical Society 264 (14) (1990): 467–470. A recent report that a Florida dentist may have transmitted HIV to three patients has prompted the AMA to recommend that HIV-infected physicians inform patients of their status or cease performing invasive procedures and has caused the CDC to consider revising its own guidelines for health care settings, BNA-6 AIDS Policy & Law (Jan. 23, 1991) at 2–3.

Here the statute follows Sec. 504 and the court's interpretation of it in Arline. Parmet, supra note 10, at 67–68.

136 Cong. Rec. H. 2478 (May 17, 1990). The Chapman Amendment, which was clearly aimed at AIDS, departed from the general tenor of the ADA by allowing an employer to act even where the employee did not in fact pose a “direct threat.”

The Amendment had an interesting history. Despite its absence from the Senate bill, the Senate voted to instruct its conferences to support the amendment. Id. at S. 7448 (June 6, 1990). The conference committee, nevertheless, originally reported out a bill with no specific discussion of food handling. H. Rpt. 101–558, 101 Cong., 2nd Sess., reported at id at H. 4170 (June 26, 1990). The Senate then balked, and a compromise was reached, leading to the recommittal to conference and adoption of the language considered in the text. Id. at S. 9527–9556 (July 11, 1990).

ADA, Sec. 103. The Act also states that it does not preempt any state or local law applicable to food handling designed to protect the public health, where the local law applies to diseases on the Secretary's list and the risk cannot be eliminated by reasonable accommodation. Thus the ADA may well preempt local laws that are less stringent.

136 Cong. Rec. S. 9532–33 (July 11, 1990)(remarks of Sen. Hatch).

ADA, Sec. 228(B) (requiring one accessible car per train within five years of the statute's effective date, [18 months following enactment]).

E.g., ADA, Sec. 242(A)(3)(D).

ADA, Secs. 242(e).

In the case of transportation, that will be the Department of Transportation. ADA, Sec. 244.

Sen. Rpt. at 63.

See text accompanying notes 115–116, supra.

ADA, Sec. 101(8).

ADA, Secs. 302(a); 302(b)(1)(A).

ADA, Sec. 302(2)(b)(A)(l).

ADA, Sec. 302(b)(2)(A)(ii); 302(b)(3). The Act also defines as discriminatory the failure to take such steps as are necessary to ensure that no disabled individual is excluded or “treated differently” because of the absence of auxiliary aids and services, “unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” ADA, Sec. 302(b)(2)(A)(iii).

House Rpt. Pt. II, at 104.

109 S.Ct. at 2115; Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)(minority set-aside violates the equal protection clause), but see Metro Broadcasting, Inc. v. FCC, U.S., 110 S.Ct. 2997 (1990)(upholding FCC's minority enhancement program).

Choate, 469 U.S. at 287; Hendrick Hudson Dist. Bd. v. Rowley, 458 U.S. 176 (1982)(Education for All Handicapped Children case); Davis, 442 U.S. at 397.

Parmet Wendy E. , supra note 10 at 92–94.

ADA Sec. 301(7)(F) (defining offices of a health care provider and hospitals as public accommodations).

The House report says that these provisions permit medical specialization. H. Rpt. Pt. II at 105–106. Arguably they do so only when specialization can be justified by the patient's as opposed to physician's interests.

729 F.2d 144, 157 (2d Cir. 1984). See also Ross v. Hilltop Rehabilitation Hosp., 676 F. Supp. 1528 (D. Colo. 1987). In Bowen v. American Hosp. Assoc., 476 U.S. 610 (1986), a plurality of the Supreme Court found insufficient justification for the so-called Baby Doe regulations, which pertained to the treatment of severely ill newborns. The plurality's opinion stressed that whatever discrimination existed appeared to come from parents, not providers, and that Sec. 504 does not cover parental decision-making. The case therefore offers little insight on how anti-discrimination provisions affect medical decision making by covered parties.

ADA, Sec. 302(b)(l)(A)(iii). See also Secs. 302(b)(1)(A)(i); 302(b)(2)(A)(iii).

Under ADA, Sec. 302(b)(2)(A)(i) the question is whether the decision is “necessary for the provision of the goods…”? Under Sec. 302(b)(2)(A)(ii) the question is whether it would “fundamentally alter the nature of the good?” The latter inquiry seems most applicable here.

ADA, Sec. 2(a)(8).

135 Cong. Rec. S. 4985–87 (May 7, 1989)(remarks of Sen. Harkin); Sen. Rpt. at 17–18.

ADA, Sec. 501.

For those lacking health insurance, Medicaid is often the insurance of last resort. Medicaid eligibility, however, requires very low income or very high medical bills. Annas George J. , American Health Law (Boston: Little, Brown, and Co. 1990) at 165–181.