Course Introduction & History of the Disability Rights Movement
ADA General Provisions, p. 1 (42 U.S.C. § 12101)
Models of Understanding Disbility:
1) Moral model – you’re either good or bad for having a disability
2) Charity/Dependent Model – disability is a tragedy afflicting piteous individuals
3) Medical Model – “If people would just take their meds everything would be ok”
4) Civil Rights / Social Model
a. Disabilities not conceptualized as an individual problem
b. Society erects barriers that prevents full participation
c. The first model that views disability as external to the person
d. Encourages society to integrate all people
e. “mobility impairment”
History of Disability Discrimination Laws
1968 Architectural Barriers Act – requires federally owned, leased, or financed buildings be accessible.
1973 Rehabilitation Act – §§ 501, 503, and 504 prohibit federal agencies, federal contractors, and recipients of federal financial assistance from discriminating against qualified individuals with disabilities on the basis of disability.
For nearly a decade, there was no judicial enforcement of this statutory requirement.
§ 501 – federal government as an actor
§ 504 – actors that receive federal funding
1975 IDEA – guarantees that each child with a disability shall have an individualized education program (IEP) so that he or she can receive a free and appropriate public education (FAPE).
Voting Accessibility for the Elderly and Handicapped Act of 1984
Air Carriers Access Act of 1986
Fair Housing Act Amendments of 1988
Child Abuse Amendments of 1984
Title I – Employment
Title III – Access
Unrue Act – CA disability rights statute incorporates the Rehab Act and the ADA
City of Cleburne v. Cleburne Living Center & Atkins v. Virginia, 1985 (p. 12) – Establishes that disability is not a suspect classification and should be evaluated under a rational basis standard.
· F: City found that the group home to house 13 developmentally delayed individuals constituted a “hospital for the feebleminded” and denied a zoning permit.
· H: Court refuses to find that the disabled are a suspect class or even a quasi-suspect class because it would be too difficult to distinguish the group. Under rational basis, there is no reason for the city to deny this permit because their reasons are irrational and negative attitudes or unsubstantiated fears are not permissible bases for treating a group home differently from apartment houses and other similar residences.
Atkins v. Virginia, 2002 (p. 21) – Executing the mentally retarded violates the 8th Amendment’s proscriptions on cruel and unusual punishment.
Majority: People with a diminished capacity to recognize right and wrong do not have the same malice that constitutes a reason to use capital punishment.
· Dissent: Mental illness is too easy to feign, so we should execute.
Definition of Disability: ADA and Federal Law
ADA General Provisions, p. 1-2 (42 U.S.C. § 12102(2))
EEOC Title I Regulations, p. 7-8 (29 C.F.R. § 1630.1(g)-(l))
DOJ Title III Regulations, p. 343-344 (28 C.F.R. § 36.104)
· § 12111(8) – Qualified Individual with a disability (QUID)
· § 12111(3) – Definition of direct threat
· § 12111(9) – Definition of reasonable accommodation (RA)
· § 12111(10) – Definition of undue hardship
· § 12112(a) – Purpose of the ADA Title I – There will be no discrimination against a qualified individual with a disability in regard to job…
· § 12112(b)(6) – “job-related” and “business necessity” – Anything that screens out an individual is considered discrimination unless it’s job related and consisted with business necessity.
· § 12112(b)(5)(A) – undue hardship – Not providing an accommodation is considered discrimination unless it is an undue hardship
· § 12113(a) – Defense – A defense to a charge that a qualification is job related or business necessity.
· § 12113(b) – Direct threat defense
Steps to an Employment Discrimination Claim:
1) Is the entity covered?
2) Is the person disabled?
3) Is the person a qualified individual?
Individual With a Disability:
1) Has a physical or mental impairment that substantially limits one or more of the individual’s major life activities;
2) has a record of such impairment; or
3) is regarded as having such an impairment.
Defining Impairment: a physical or mental impairment that substantially limits one or more of the individual’s major life activities (In CA, it doesn’t have to be substantial)
i. Impairment – (From EEOC regulations in the supplement)
1. Physical – physiological disorder, anatomical loss, cosmetic disfigurement
2. Mental – disorder, IDEA
3. Doesn’t include minor or trivial impairments, near sightedness, seasonal allergies, simple physical characteristics (obesity is included)
a. Some cities prohibit discrimination on weight. Morbid obesity is arguably permanent.
b. Recovering drug addict or alcoholism are disabilities
c. Homosexuality and transgender issues aren’t included
d. Compulsive traits – gambling, etc.
e. Sexual exhibition disorders are not covered
ii. Major life activity – courts are limited to the activity presented by the plaintiff
1. Seeing, hearing, walking, grooming, bathing, feeding, learning, breathing, reproduction, sexual activity, working, etc.
2. Working is a bad one to choose because you have to prove a broad range of jobs as compared to the average person with comparable training (outlined in UPS case for today). Not being able to perform a single job isn’t enough. Can consider the geographic reason they’re in, the # and types of jobs that exist in the area for similar training. The higher educated, the more likely the court will find someone will be excluded from a broad range of jobs.
“An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” “An otherwise qualified person is one who is able to eet all of the program’s requirements in spite of his handicap.”
Can you perform the essential functions of the job? (look at handbook, job advertisement, look at past persons in the job)
· Could the job be performed with or without a reasonable accommodation? If yes, the employer is supposed to engage in an interactive process with the employee to explore ways the person can remain in the position. This can be initiated by the employer or the employee.
Direct threat – defense when all of the other functions are met.
Collective Bargaining agreements – In some instances, giving someone a new job position, isn’t a reasonable accommodation if the collective bargaining agreement sets limits on promotions or transfers.
School Board of Nassau County v. Arline, 1987 (p. 39) – Contagious diseases are disabilities, but in determining whether the claimant is qualified, the risk of transmission must be considered.
· F: Arline was discharged due to the “continued reoccurrence of tuberculosis.”
· The Court finds the 9th Circuit was too lenient and that “difference” isn’t the same as substantial limitation. They court should have taken into account that he had learned to compensate for the disability.
Major Life Activities
Toyota v. Williams, 2002 (p. 102) – Major life activities are those that are of central importance to most people’s daily lives.
· P has carpal tunnel syndrome precluded her from lifting more than 20 pounds or from frequently lifting or carrying objects weighing up to 10 pounds or engaging in repetitive movements with her wrists or overhead movement.
· The court defines major life activities as those activities that are of central importance to most people’s daily lives. Sutton says an activity of her job is insufficient. Brushing her teeth, combing her hair, playing with her children, is limited and is a major life activity, but she isn’t limited enough for summary judgment.
· Note: The court looked at general activities done by the public, however, this is supposed to be an individualized analysis. The analysis should have focused on the specific tasks in her day, rather than in general.
“Regarded As” Having a Disability
Murphy v. UPS, 1999 (p. 127) –
· Petitioner was dismissed from his job as a UPS mechanic because of his high blood pressure. He was hired erroneously without being tested. With medication, his hypertension does not significantly restrict his activities and he can function normally.
· As in Sutton, a person is “regarded as” being disabled if the person’s actual, nonlimiting impairment substantially limits one or more major life activities. Employer claims he was fired because he has a physical impairment that is regarded as preventing him from obtaining DOT health certification.
· Court says he hasn’t demonstrated that he is regarded as being eliminated from a class of jobs, so he isn’t regarded as being substantially limited in the area of working.
Title I – Reasonable Accommodations, Defenses, FMLA & Remedies
California State Law Provisions
Claudia Center’s Chart – state vs. federal definitions of disability
Title I (p. 139)
– Rules promulgated under Title I are equally applicable to Title II. Title II covers only public entities.
– Title I regulations also apply to §§ 510 and 504 of the Rehab Act.
· “An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
· “An otherwise qualified person is one who is able to meet all of the program’s requirements in spite of his handicap.”
When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any reasonable accommodation by the employer would enable the handicapped person