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THE DISABLED

Supreme Court Upsetting a Rights Movement

The Supreme Court's ADA employment rulings read as if they were drawn from the pages of "Catch-22."

June 02, 2002|CHARLES LINDNER | Charles Lindner is past president of the Los Angeles Criminal Bar Assn.

During the last 50 years, the U.S. Supreme Court has played a significant role in three major civil rights movements. In outlawing school segregation in 1954 (Brown vs. the Board of Education), it helped ignite the campaign to give African Americans full equality. In giving women the right to an abortion in 1973 (Roe vs. Wade), it greatly bolstered the women's movement. And in a series of rulings on the Americans With Disabilities Act (ADA), the court seems determined to reverse the disabled-rights movement.

Because of a fear of "cripples," ignorance or outright bigotry, the task of gaining mainstream acceptance for the disabled has proved even more daunting than for blacks and women. For example, a state refused to hire cancer victims for at least five years after the patients' last treatments because a government official mistakenly believed cancer was contagious. A public school refused to hire a deaf instructor to teach at a state's school for the deaf because she lacked "listening skills." A zoo turned away children suffering from Down syndrome because the zookeeper "feared they would upset the chimpanzees." These were among the more than 100 cases presented to Congress before it passed the ADA in 1990.

For the disabled, the ADA was the equivalent of the Civil Rights Act of 1964: It promised to change forever their status in the nation and open up numerous employment opportunities. The act outlaws state and private discrimination against the disabled in employment and mandates that employers treat disabled applicants and employees with basic human dignity. But unlike the Warren court, which forced a resistant country onto the path of racial integration, or the reluctant Berger court that recognized a woman's place in the working world, the Rehnquist court has stepped off the civil rights path completely, siding with employers in the first five ADA cases to reach it.

The current majority apparently isn't shy about distorting the record to achieve its desired result. In University of Alabama vs. Garrett last year, Chief Justice William H. Rehnquist wrote that Congress had failed to adequately investigate whether state governments have a history of discriminating against the disabled. To anyone familiar with the ADA, this was brazen nonsense. Congressional committees have investigated disability discrimination for years. The Garrett dissenters, in fact, published a 39-page list of state-by-state examples of official acts of discrimination compiled by a congressional task force.

Nevertheless, Rehnquist wrote that it would be "entirely rational and therefore constitutional for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities" without the accommodations the ADA requires for those who need them.

In Sutton vs. United Airlines, the plaintiffs, twin sisters, had applied for jobs as UAL pilots. They already held jobs as commercial jet pilots. They had uncorrected vision of 20/200 and corrected vision of 20/20. United required uncorrected vision of 20/100, although it did not discharge pilots whose uncorrected vision later deteriorated, as long as it corrected to 20/20.

The court held that the sisters were not "substantially limited" in a "major life activity" because there were many other jobs they could do (just not fly for United). The same reasoning was applied in Murphy vs. United Parcel Service. In that case, the plaintiff was a UPS mechanic who was required to drive heavy vehicles as part of his job. He was terminated because of hypertension, although he controlled his condition with medication.

Thus, even though the Sutton sisters were not hired because of a correctable vision deficiency, and Murphy was fired because of his medicinally corrected blood pressure, the court found that none of them were disabled for the purpose of employment under the ADA.

Confused? The Supreme Court's ADA employment rulings read as if they were drawn from the pages of "Catch-22." If you are able to do the job with glasses or medication, you are not disabled under the ADA. On the other hand, if you cannot do the job because of your bad vision or high blood pressure, you are not protected under the ADA. The only disabled people protected under the ADA are people who do not need protection.

For the high court, then, some people are not disabled enough; some people are too disabled; but, so far, nobody has been disabled "just right."

Ella Williams, an automobile assembly line worker at a Toyota plant in Kentucky, developed crippling carpal tunnel syndrome on the job. She was transferred to a job of inspecting paint on cars, but that job was later expanded to include wiping the cars as they passed on the assembly line. Toyota fired her when her disability prevented her from performing the new duties. Williams contended that her inability to raise her arms above shoulder level was an impairment of a "major life activity" covered by the ADA.

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