Disability discrimination: The ADA & backlash; DDA

“…the ultimate definition of disability is determined by government policy… disability is finally whatever public officials say it is” (Harlan Hahn 1985, unpaged)

Colin Barnes (1991, pp 11-27) traces the roots of discrimination against disabled people from early references in the Old Testament and ancient Greece and Rome, through religious and superstitious persecution in the Middle Ages up to segregation and the economic demands following industrialisation. The increased significance of individualism, capital and medicine in the post industrial society merely added weight to these historical forms of fear and prejudice. In contemporary society, with the establishment of professional care services and the integration of disabled people into communities, Barnes claims that discrimination has not disappeared but merely been softened and made less apparent, since these ostensibly positive developments are based on traditional, oppressive notions of impairment and disability.

Discrimination against disabled people takes many forms, but the disability movement specifically campaigns against what they see as institutional discrimination as opposed to individual cases. As such, they emphasise the need for civil rights legislation to protect disabled people from discrimination and unfair treatment in society. Some of the areas where discrimination is obvious include equal employment and education opportunities, access to public services and transport, inaccessible or segregated housing, higher insurance premiums and general barriers to participation in mainstream social activities. Harlan Hahn (1987) pointed out that disabled people in the USA have experienced more institutionalised discrimination than ethnic groups have under the severest racist policies in certain nations. Elsewhere he asserted that ultimate responsibility for removing barriers to full inclusion and preventing discrimination lies with the government, since “policies shaping the environment are a reflection of prevalent social attitudes and values” (Hahn 1985, unpaged), and continues:

In fact, the origins of the treatment of disabled Americans eventually can be traced to the so-called attitudinal environment of society which has revealed aversive and antagonistic feelings about people with disabilities” (ibid).

Following activist campaigns in the US and then the UK, legislation against discrimination on the grounds of disability was passed in both countries, but with little success and much criticism from disabled people.

“Nowhere in the world – apart from the US – is there anti-discrimination legislation establishing civil rights for disabled people.”
David Hevey (1992a, n.p.)

Paul Abberley pointed out that disability oppression is different in nature from prejudices based on sex and race:

“While in the case of sexual and racial oppression, biological difference serves only as a qualificatory condition of a wholly ideological oppression, for disabled people the biological difference… is part of the oppression” (1987, p 8).

The Americans with Disabilities Act (ADA) was drafted using the social model to explain how disability is primarily a result of societal discrimination rather than functional restrictions resulting solely from impairments. It was designed to grant disabled people “full citizenship” and bring “a previously excluded group into the fold” by removing discriminatory and physical barriers, requiring that employers and owners of public accommodation adapt the environments they managed, at their own expense, to suit the needs of disabled people (Waterstone, 2015).

Although the passing of the ADA was initially hailed as a triumph for the disability movement and a watershed for civil rights in general (it was passed in 1991 by an overwhelming majority under Republican administration (Krieger, 2003, p 1 – 2)), these sentiments were soon replaced by concern as the law was gradually misinterpreted, derided and defamed in the courts and the media (and consequently in the eyes of the general public). It was argued that employers would essentially have their hands tied and be rendered powerless if an employee turned out to be a rampant maniac, while the law allowed other ‘slackers’ to claim paid leave for their treatment or recovery and employers were forced to change work environments to an unreasonable extent (ibid, pp 8-10).

As early as 1994, Joseph Shapiro (see Nelson 1994, pp 59-67) predicted that the lack of explanation to mass media outlets would probably result in the Act, along with any parties citing or implementing it, becoming prone to misinterpretation and resentment. Shapiro points out that the rationale behind this decision not to involve press was primarily motivated by the failure among journalists to understand the new civil rights awareness of disabled people, demonstrated by their reluctance to shake off the dualistic stereotype of personal tragedy vs. ‘supercrip’. Politicians, on the other hand, were quick to see the voting potential: “since disability hits nearly one in six people and cuts across class and racial lines, many key members of Congress understood the yearning for disability rights“, they not only understood, but many of the then members had direct experience of disability themselves or through their family members (ibid, p 60). Although the bill was passed, the dearth of historical and contextual information meant there was little understanding in society of the need for such legislative protection; in contrast to more high profile civil rights claims, which had been preceded and supported by well-publicised, salient campaigns for social change (Waterstone, 2015) the ‘stealth’ approach of the disability movement rested on the hope that if disabled people became more visible in mainstream society, attitudes would change and prejudices would fade (Shapiro, p 62). Unfortunately, in the absence of any broad-based and focused social movement, there is no significant attitude change or pressure exerted on judges when litigating disability cases (Waterstone, 2015).

Lennard Davis (2000) points out that the backlash came about largely as a result of a fundamental hiatus between the logic and motivations of the drafters of the law and that of the legal professionals assigned to interpret and enforce it. The fact that the courts had no understanding of the social model was demonstrated by the stereotypical and prejudiced language used in litigation suits in the 1990s, with some critics bemoaning “a return to the Dark Ages” (Tucker, 2000). While individual cases were viewed as selfish, egocentric attempts to squeeze more from an already generous employer (who had, after all very charitably agreed to engage the disabled person), the repercussions of forcing all employers to adapt all workplace environments to the ‘special needs’ of disabled persons was firstly a Sisyphean task (since catering for the needs of one type of disability would negatively impact the abilities of other types), and secondly such global measures were surely going to cripple the economy and bring about ultimate collapse of US industry (Davis, 2000, pp 202-205). As such, it was deemed unreasonable for the disabled community to expect employers to ‘bend over backwards’ in order to meet their trivial and whimsical demands (ibid, p 204). Very often disabled people were seen as not being team players; they were bad sports or whiners, who refused to conform to accepted norms of American stoical individualism and independence (ibid, p 201). A further concern was that too many people with minor conditions could qualify as disabled, resulting in an oversized protected class (Davis, 2006).

A major problem was the fact that the Supreme Court ruled in 1999 that it was up to the Court to determine whether an individual is disabled or not, permitting entities to discriminate at will against those whom the law was intended to protect (Tucker, 2000, p 370). Other areas of ambiguity include what exactly ‘reasonable accommodation’ consists of, and to what extent an impairment is seen as interfering with an individual’s ability to perform certain functions (Davis, 2000, p 198). This is further exacerbated by the fact that lawyers are not required to be ‘disability literate’ when litigating cases under the ADA, which Davis points out is a major shortcoming, since the language society uses will necessarily reflect the societal constructions that sustain prejudice (ibid, p 210). Stein et al (2010) bemoan the fact that in almost all the ADA cases that have been tried before the Supreme Court, there is a complete absence of disability rights “cause lawyers” (p 1661) by which they mean lawyers who invest a significant amount of professional time on disability cases and have connections with disability organizations). They also suggest that “Congress promulgated imprecise statutory language that ultimately was susceptible to limiting judicial interpretation” (ibid, p 1663).

According to Krieger (2003, p 382), the ADA is overly complex in nature, with standards that are “ambiguous and opaque“. As such, it has been recommended (Tucker, 2000) that the ADA be redrafted by Congress, redefining the definition of disability to exclude certain ‘minor impairments’ that are common and easily corrected, as well as stating expressly that work constitutes a ‘major life activity’, while mitigating measures should be taken into account to determine whether an individual is capable of performing a particular function as opposed to whether or not the person is disabled.

“Yet even “reasonable accommodation” represents access to a highly normalized world, in this case of embodied movement. Accommodation helps Sunny to move among, or to approximate the movements of, the able-bodied. It does not permit her to move in the ways that are most effective or satisfying for her, and it does not challenge legal actors and others to recognize the deep, normalizing construction of what is understood to be natural movement. Enabling Sunny to move, in(to) the public sphere, in the ways that she saw fit would still require easing and pluralizing these restrictive norms. And law in its normative/transformative mode may not be the right instrument for doing this.” (Abrams 2011, p 80)

Equivalent legislation, the Disability Discrimination Act (DDA), was hurriedly and reluctantly passed in the UK in 1995 (taking just 6 months from beginning to end), setting a precedent that was followed by the EU and its member states (Pearson & Watson 2007). Unfortunately, the law was structured on the medical model and it was flatly rejected by the disability movement, since it did not afford them the comprehensive legal civil rights protection they had sought (Evans 1996). Regarded as a ‘political compromise’ to offset a more radical bill, it has variously been described as “flawed“, “weak“, “limited
scope“, “unenforceable” (Evans 1996) accused of having a “lack of
teeth” and being a “social disgrace” (Miller, cited in Evans 1996), as well as being “confused, contorted and unsatisfactory” and “a dissembling law, not an enabling statute” (Gooding 1996, Doyle 1997: citations from Pearson & Watson 2007). One of the main issues is that the statute deals with discrimination on an individual basis, locating the cause of disablement in the impairment rather than the way society is organised, and as such is powerless to tackle the institutionalised discrimination that the social model argues against. McTigue (2007) also points out that there is no concrete definition of the terms physical and mental impairment, and ‘normal day-to-day activities’ that the statute employs, while others (Hurstfield et al 2004) have observed that the high costs involved combined with problems related to producing clear evidence often deter disabled people from bringing cases to court under the Act. Where the act succeeds is in setting minimum standards for public transport access, getting educational establishments to provide disabled people with information, as well as forming the National Disability Council to advise the government on disability discrimination issues, but these elements are seen as ‘piecemeal’ by Evans, who declares that the act “fails miserably in not establishing a clear principle for equal treatment” (1996).

It has been suggested (Abrams 2011) that the creation of laws, rather than pluralizing the restrictive norms already in place, in fact establishes new hegemonic norms in what has been termed a ‘jurispathic’ paradox, thus undermining the initial motive for challenging the status quo. While others (Waterstone, 2015) assert that for advocates of disability rights, a more effective tack would be to employ political process rather than constitutional litigation. The Disabled People’s International also observed in 1986 that:

“Countries which had passed legislation favourable to disabled people, did not necessarily find that improved conditions followed – or that disabled people had more control over their lives as a result. The prerequisite for successful action lay in the proper organisation of disabled persons’ groups, and the development of a high level of public awareness of disability issues” (DPI 1986, cited in Oliver 1990, p 122)

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