By John M. Williams Many years ago when I first started looking for a job, I sought positions with several state agencies. On more than a half-dozen occasions, I was told, "Even though you're qualified for the job, we won't offer it [to you] because you stutter." That made me angry. It was a clear case of discrimination based on my speech impediment. But I did not feel I had any legal recourse and let the matter drop.
When the Americans with Disabilities Act passed in 1990, I thought that law could finally be brought to bear to stamp out discrimination against people with disabilities seeking or employed in state jobs.
Apparently I was wrong. In a key decision on the landmark case University of Alabama v. Garret, the U.S. Supreme Court on Feb. 21 ruled that the disabled could not sue state government agencies. The 5-4 decision showed deep divisions in the court. But the effect is the same. It places states' rights ahead of the rights of people with disabilities and their civil rights.
PRINCIPLE DISMISSED. Far more troubling than the ruling itself was the language behind it. In no uncertain terms, Chief Justice William Rhenquist gutted the concept of "reasonable accommodation." This notion, at the heart of the ADA, is that employers must make a reasonable effort to create a workplace in which a disabled person can function. Rhenquist also says people with disabilities are not entitled to sue for discrimination under the 14th Amendment, also known as the Equal Protection Amendment.
Precedents at such a high level could seriously undermine the ADA in future cases -- not just in the public sector but in the private sector as well. All told, it's a huge step backwards not only for disabled persons but for anyone who believes that all Americans deserve a fair chance to work, support themselves, and pay taxes to the government, instead of being dependent on the state.
Here's the history behind the Garret decision. Patricia Garrett was a nurse who worked at the University of Alabama's medical center. Garrett discovered that she had breast cancer and received a leave of absence while recovering from surgery. When she returned to work, she was demoted. Her employers perceived that she had a disability and believed she could no longer perform her duties satisfactorily.
LITIGATION LID. Garrett sued to get her job back under the ADA. A federal court joined Garrett's case with that of Milton Ash, a state corrections officer. Ash, who has asthma, was suing the state for failing to enforce no-smoking laws in his workplace. Garret and Ash lost the first round when a federal judge cited the 11th Amendment of the U.S. Constitution, which prevents individuals from suing the government without the explicit consent of that government. Also known as sovereign immunity, this right was granted to states to keep a lid on litigation.
A U.S. Circuit Court of Appeals panel ruled in favor of Garrett and Ash. The court argued that the plaintiffs were entitled to legal recourse under the equal-protection clause of the 14th Amendment, even against a state government. But the Supreme Court reversed the appellate decision, finding in favor of the states. With the last word from the highest court in the land, the current body of precedents now holds that the 11th Amendment and sovereign immunity supersedes the civil rights of disabled individuals.
Rhenquist wrote the majority decision, with justices Clarence Thomas, Sandra Day O'Connor, David Kennedy, and Antonin Scalia concurring. In the decision, he appears to say discrimination against people with disabilities by state employers is an exceedingly rare event. "Even if it were to be determined that the half-dozen relevant examples for the record showed unconstitutional action on the part of the states, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which legislation must be based," reads Rhenquist's opinion.
HUGE STEP BACKWARD. Not stopping there, Rhenquist writes "...the 14th Amendment does not require states to make special accommodations for the disabled so long as their actions toward such individuals are rational. They could quite hardheartedly...hold to job accommodations which do not make allowances for the disabled." Hardhearted, indeed. What Rhenquist and his co-signers imply is that the judicial concept of reasonable accommodation carries no weight. That's a huge step backward for Americans with disabilities, even if the impact of the decision is confined to state employers.
While the merits of Garret's case could be debated, the decision and its broad implications are simply wrong. As Justice Stephen Bryer points out in his dissent: "The powerful evidence of discriminatory treatment throughout society in general...implicates state governments as well.... There are roughly 300 examples of discrimination by state governments themselves in the legislative record." Where Rhenquist was looking for examples I don't know. But I can personally attest to a half-dozen instances in my experience alone.
As for the assertion that reasonable accommodation plays no role in the law, the Supremes look not only mean-spirited but also hypocritical. Other forms of reasonable accommodation are codified throughout federal and state law. For example, Title IX mandates that universities dedicate equal monies to women's sports programs. Women's sports programs earn less money for universities, so they're often more expensive to support. Does that mean universities should therefore discriminate against women in the provision of equal opportunities based on economics?
Or how about affirmative-action programs where minority contractors get preference even if they don't make the lowest bid. Does that make economic sense for federal or state agenices? No, it doesn't. So the ADA should fall under the same rubric.
UNEQUAL PROTECTION. The Garrett decision now sends states the exact opposite message. What's more, it provides an easy way to say no to disabled workers. Blind workers cost more to employ because they need Braille printers and text-to-speech software. Quadriplegics use voice-recognition software, adaptive keyboards, and other hardware that costs money. This ruling could also allow states to fire or demote an employee who becomes disabled on the job and returns requiring assistive technology.
Perhaps the most troubling part of the entire decision were these words, penned by Rhenquist. "If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause," he writes. That means the disabled are not entitled to the protections of the 14th Amendment in cases regarding their disability.
Those words could be broadly interpreted to apply to private-sector ADA decisions, as well. Not good. Repercussions from this decision will ripple through the law for years to come. It could very well be that this decision goes down in history as a major setback for the disability community and the ADA.
It has been a long time since I went and asked for a state job. Decades have passed. It makes me very sad to think I could suffer the same type of discrimination now that I suffered then. It makes me even sadder to think that the Supreme Court now condones this discrimination. Williams writes Assistive Technology every week, only for BW Online.
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