Supreme Injustice: Disability and the Judiciary
Part I
Listening to Elouise Cobell of the Blackfeet Nation on Democracy Now!1 describe how Native Americans have been cheated out of their government-run trust fund income by the federal government, it occurred to me that Native American people and disabled people share a common grievance when it comes to government enforcement of the law.
Laws are made by Congress but other branches of government do not necessarily uphold the law. Legislation is enacted but government often does not adequately enforce it. Government conveniently ignores laws—in some instances unintentionally and out of incompetence but in others, government (in its many varied institutions) intentionally does not to abide by the law. Rather it evades it, bypasses it, weakens it, or makes it obsolete.
Instead of competent government regulation we have civil litigation. The process of civil litigation to enforce the ADA has been an arduous one, prone before a hostile Supreme Court.
As legal cases work their way to the Supreme Court, the court has seen fit to narrow the reach of the act on local government. A year ago [in 2001—Ed.], for instance, the Supremes ruled that state workers cannot use the civil rights law to win money damages for job discrimination. The court held that the disability rights law does not trump states’ constitutional immunity against being sued for damages in federal courts (Garrett v. Alabama).
Over ten years after passage of the ADA, Jeffrey Gorman, a paraplegic who lives in Missouri, was badly injured while being taken to jail for trespassing at a country-western bar, because the Kansas City police department had not complied with ADA regulations. Gorman, who uses a wheelchair, warned officers that they did not have an accessible van to transport him safely to jail. According to Gorman’s lawyer, the officers ignored Gorman, removed him from his wheelchair, propped him on a bench, and tied him to the vehicle’s wall with his own belt. During the trip to the jail, Gorman fell and injured his shoulder and back. He had surgery due to the injury. None of these facts are contested.
Just think of it like this. If a non-disabled person could not be transported to jail because there were no seats for him/her in a patrol car, and the police strapped him to the top of their squad car using the belt from his clothing and the person fell off the car and injured themselves to the extent that he required surgery, would a jury punish that police department with a huge monetary award? You bet it would. It would seek punishment to avoid having the same egregious act reoccur. Would the lawyers for the city come around and try to undo that award? It is unlikely city politicians would risk public outcry.
In Gorman’s case, the jury did award him compensatory and punitive damages. Kansas City did not contest the compensatory damages but appealed the punitive damages, taking the case to the Eighth District Court. It agreed with Gorman that punitive damages were in order but noted that the Sixth District Court had ruled differently in a similar case, an unfortunate signal that the Supreme Court, so hostile to disability rights, would settle the question.
Gorman hoped the Supreme Court would rule that “they [Kansas City] are not above the law even though they’re the government.”2 Local government wanted protection from lawsuits when they broke the law. The Kansas City defense even asserted at the jury trial that since Gorman was mobile with the use of a corrective device, the wheelchair, he was not disabled under the ADA (Federal Rights Project). Some disabled persons have been dismissed as illegitimate ADA plaintiffs because their disabilities can be mitigated by drugs, devices, what have you. It is a bit nauseating to know that lawyers for Kansas City used the argument that Gorman was not technically disabled and had no right to sue under the ADA because his wheelchair mitigated his disablement.
[In mid-2002—Ed.] the Supremes agreed with Kansas City in Barnes v. Gorman and threw out the punitive damages holding that such damages are unavailable in private suits brought under the ADA and the Rehabilitation Act. When Congress passed the ADA, it did not specify that people could collect punitive damages for violations, but since the ADA was fashioned like the Civil Rights Act of 1964, there was congressional understanding of the availability of punitive damages under Title VI.
Lawyers for the local government in Kansas City and the Bush administration, however, argued that Congress never intended for cities to face large jury judgments. Justice Scalia, writing for the court, said that adding punitive damages in ADA cases “could well be disastrous.” He said recipients of federal funds probably would not agree “to exposure to such unorthodox and indeterminate liability.”
The corporatist court applied contract-law analogy in throwing out the punitive damages. It held that “a remedy is appropriate relief only if the recipient is on notice that, by accepting federal funding, it exposes itself to such liability.” The court reasoned that “since Title VI mentions no remedies; and punitive damages are generally not available for breach of contract,” no damages are available under the ADA or the Rehabilitation Act. There are still punitive damages available to women and minorities under Title VI. How broadly will this court extend its ruling?
We in the disability community know from years of repeated problems at all levels of government that the Gorman case is not an isolated incident. The ADA was passed in 1990, yet over a decade later many local and state governments are not in compliance with its regulations. The significance of Barnes v. Gorman is broader than a disabled man being wrongly transported to jail. Local government is responsible for many public services: transportation, health, welfare, jails, and the local courts, to name but a few. If disabled persons are denied the right to seek punitive damages when governments violate the law, there will be little incentive for governments to get their act together and make programs and systems accessible.
Still the larger issue is that of societal exclusion—and the social relations which erect exclusion. Disability is a social experience which arises from the specific ways in which society organizes its fundamental activities. Work, transportation, leisure, education, and domestic life disable persons when they are not accessible. We are “disabled” by the way a society is organized.
With civil rights laws in place, disabled citizens are still treated like second-or third-class citizens—still shut out from full participation in the affairs and life of our communities. The Supreme Court has the power of judicial interpretation to decide the intent and scope of laws as they are applied in society in specific situations. So far, the Supreme Court, the final arbiter of law, has seen fit to continue to disable us.
In March [2002—Ed.], Justice Sandra Day O’Connor said the Supreme Court’s 2001–2002 term will likely be remembered as the “disabilities act term’’ for all the cases dealing with the [ADA] civil rights law. […]
The Supreme Court chooses which cases it will hear and which ones it will let stand. In every disability case the court agreed to hear this term, the disabled worker had prevailed at the district court or appellate court level. The Supreme Court justices could have left well enough alone. Instead the high court fulfilled its historical mandate to act as a check on the democratic majority and to protect private contract and property. The justices overturned the lower courts’ decisions in favor of the disabled individual in every one of the cases they reviewed.
Ella Williams (up against Toyota) had won the right to retain another job which accommodated her carpal tunnel syndrome, Mario Echazabal (Chevron) who has Hepatitis C had won the right to work at an oil refinery, and Robert Barnett (US Airways) had won the right to a mailroom job which allowed him to continue to work with a bad back. All lost their right to a reasonable accommodation at the feet of this corporatist Supreme Court. […]
In each of the three employment discrimination cases the loser corporations— Toyota Manufacturing of Kentucky, ChevronTexaco Corp., and US Airways— gleefully petitioned the Supreme Court to overturn the victorious workers in their quest for a reasonable accommodation on the job.
The corporations had a reason to expect victory since the Supreme Court had dealt blows to disabled workers the previous court term. Last year began the slaughter of the definition of “disabled” under the ADA. In what has become known as the Sutton trilogy, the Supreme Court narrowed the definition of disability and the numbers of persons who can seek redress under the ADA (Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertsons, Inc. v. Kirkingburg).
The court ruled that impairments are not disabilities if they can be mitigated by lifestyle, by devices, or by medications. The lower courts, following Sutton, now disqualify people with diabetes, heart conditions, epilepsy, cancer, and “mental illness” from pursuing ADA employment discrimination claims because their impairments can be mitigated with medications.
Caught in a viscous Catch-22, workers with these conditions are “too functional” to be “disabled” yet can be fired for the “non-disabling” conditions. The Supreme Court virtually de-defined disability into thin air.
As Ruth O’Brien put it, the Supreme Court “turned the ADA on its head” by giving employers “the right to discriminate” and “the freedom to decide against hiring people who had limiting impairments.”3 […]
In the 2001–2002Y term the justices got another chance to come to the aid of big business and de-define disability in the Toyota Manufacturing, Kentucky, Inc. v. Williams case. The justices ruled that Ella Williams, although impaired, was not a qualified individual with a disability under the ADA because carpal tunnel syndrome did not “substantially limit” Williams in any major life activity since Williams could “still brush her teeth, wash her face, bathe…”!
These were actual examples the court gave. The justices threw out work as a “major life activity” prerequisite for ADA coverage! This meant that in the future a person should no longer be considered disabled merely because one could no longer perform their job.
In its amicus brief to the court, the US Chamber of Commerce and the American Trucking Associations called the Toyota decision, “keeping the lid on ADA litigation.” The Equal Employment Advisory Council (a nonprofit association made up of more than three hundred and fifteen major companies) joined the amicus. Repetitive motion injuries accounted for more than a third of the 1.7 million workplace injuries reported in 1999, but these workers have little to no chance now to use the ADA to demand their employers accommodate them by placing them in another job that they can perform.
Robert Barnett had secured a vacant job in a US Airways mailroom after back problems left him unable to handle cargo. Later, when two employees with seniority decided they wanted to transfer to the mailroom, Barnett was bumped from his job and sued US Airways under the ADA.
When congress enacted the ADA, it recognized that the traditional civil rights model would not serve to provide equal opportunities for disabled people in the labor force. The disability rights movement articulated the need for accommodations in the workplace and Congress determined that the provision of a “reasonable accommodation” was a necessary component of civil rights for disabled persons in order that they might be integrated into mainstream employment.
Congress had included “reassignment to a vacant position” on its list of what was meant by a “reasonable accommodation.” But Justice Scalia challenged, “What in the statute shows you can destroy the legitimate expectations of another employee?” (US Airways v. Barnett)
Attorney Claudia Center argued for Barnett that no one risked losing a job in this case. Indeed, the other employees claiming seniority already had jobs while Barnett was faced with the possibility of not having one at all. Is it “justice” to economically destroy one employee so that others can move up the corporate ladder?
Ruling against the Ninth Circuit Appeals Court and Barnett, and for US Airways, the Supreme Court held that employers can use a company (not union) seniority system to avoid accommodating disabled employees. By doing so, the court disallowed reasonable accommodation to challenge the social position of management.
In perhaps the most damaging decision of all, Mario Echazabal (Chevron USA, Inc. v. Echazabal) had worked successfully for some twenty years as a contract employee at a Chevron plant in Texas. However, when he sought a full-time job with Chevron, its medical evaluation determined that working at an oil refinery was too dangerous for Echazabal because he had Hepatitis C.
Echazabal’s own physician had placed no limits on his work and Chevron had been fully apprised of Echazabal’s health condition during all those years he worked as an independent agent. But Chevron wasn’t about to give him a job which would have meant full benefits and perhaps extra insurance costs. Instead it claimed that working at Chevron was harmful to Echazabal’s health and used the defense of “threat to self.”
Rarely has the Supreme Court deferred to an Equal Employment Opportunity Commission (EEOC) ruling to determine the outcome of a case. In this instance the court did rely on an unfortunate EEOC regulation favoring employers which expanded their ADA defenses to include “threat to self,” which was not in the ADA. The ADA had only named “threat to others” as a defense available to employers.
Is it not harmful to every human body to work in a chemical-laden environment? Why should one body be denied the right to boldly be exploited and slowly killed like everybody else?
The National Council on Disability damned the court’s decision as “an impermissible act of paternalism.” Marca Bristo stated the Supreme Court’s decision endorsed “the assumption that people with disabilities are not competent to make informed, wise, or safe life choices,” which is, “the most long standing and insidious aspect” of the discrimination that is banned by the ADA.
The US Chamber of Commerce called the Chevron decision “a major victory for the business community.” And so it was. It may grow bigger.
Employers are keenly interested in eliminating certain individuals from employment opportunities based on their genetic make-up. Michael Kinsley, now retired editor of Slate, suggested that genetic tests should eventually be used as qualifications for employment.4
Kinsley resigned in February as Slate’s editor, some say due to Parkinson’s Disease. Under his own genetic employment directive, Kinsley likely would have been discriminated against in employment. He could have been cut out of the game long before he established himself worthy of editorship anywhere.
How tilted towards business was the court? The justices voted 9–0 against Jeffrey Gorman. It voted against Ella Williams and for Toyota in another 9–0 vote, and again against Mario Echazabal and for Chevron in a 9–0 vote. The justices’ vote against Robert Barnett was a 5–4 split in favor of US Airways. Two conservatives (Scalia and Thomas) and two “liberals” (Ginsburg and Souter) dissented.
Clinton’s two “liberal” appointees, Stephen Breyer and Ruth Ginsburg, are resolute corporatists. Author Michael Parenti notes that Ginsburg, when serving on a lower federal court, had voted more often with the conservatives than the liberals, and she has continued to do so on the Supreme Court.5 Breyer has been a strong supporter of big business.
As Ralph Nader put it, Breyer was “hostile to regulatory law enforcement,” and that Clinton had thereby “locked the court into an anti-consumer, anti-worker, anti-environmental mode.” He was proved correct.
Is there any doubt that we can now add “anti-disability mode” to the dirty laundry list?
The ADA and equal opportunity is a non-solution for a capitalist society wherein the disabled workers and would-be workers, by definition, do not have the social or political power to realize their economic wants. Power lies at production, with the owners of capital, and the Supreme Court is one manifestation of that power. […]