Disability Law Outline

SECTION I. The Problem of Disability, Based Discrimination

A. People with Disabilities
**almost always called “individuals with disabilities” because we are individuals first
-initial definition was to define who should receive compensation for injuries sustained in war, limited to those who could no longer do manual labor.
-1954 “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration
-1990 – 5million receiving disability benefits through the social security program, when the ADA was enacted; estimated that 43 million fit the definition of: “a physical or mental impairment that substantially limits one or more of an individuals major life activities.” (Use in ADA, Rehabilitation Act, FHA)
-Part of what the ADA is trying to achieve is acceptance within society for people with disabilities.

B. Types of Discrimination
-a wide range (segregation, exclusion, construction, transportation, standards, procedures)

C. The Sources of Discrimination
-imputing more difference to a handicapped person than actually exists
-the urge to classify and form in-groups/out-groups
*Discomfort
-interaction with handicapped people, particularly visibly handicapped people makes non-handicapped uncomfortable.
-this may be a reaction to having to face the idea that we are all fragile
*Patronization and Pity
-non-handicapped people often feel and act on moral obligations to help handicapped people
-the help may be devoid of actual respect
*Stereotyping
-the term handicapped conjures up an image – often substituted for the real thing
-the spread effect – generalizing from a specific impairment to the whole person
-handicapped people have unique problems with first impressions
*Stigmatization (biggest thing – where the non-human idea comes from)
-handicapped = an imputation of an undesirable difference from others
-single most serious problem = learning to avoid, deal with or manage the stigma

D. Forms of Discrimination
1. Employment (50.6 physical, 59.7 mental – often encounter a ceiling)
2. Transportation (only 1/3 of public buses are accessible to riders with dis.)
3. Education 40% failed to graduate from high school – 22% in 2000
4. Public Accommodations – hotels, airports, etc.

E. Historical Discussion
*Handicapped – (cap in hand – a beggar) don’t use this word – use impaired/disabled/plus people first language.
*April 28th headline from the New York Times – Issue of the death penalty and the retarded … (doesn’t that sound bad)

Using the legal system to challenge discrimination is largely a 20th century phenom.
Two themes – 1-eugenics measures to control reproduction, 2- forced institutionalization b/c many people believed that the feeble minded should be prevented from reproducing and institutionalized

Getting people back to normal – are they still impaired after they get glasses, a prosthetic? – Yes

-Buck v. Bell –Justice Holmes – “Three generations of imbeciles are enough.” Authorizing the eugenics movement.

-City of Clebourne v. Clebourne Living Center (Justice White 1985) – People with a disability are not a suspect class. Therefore the determination of whether there has been discrimination by the state is a rational basis review.

-Atkins v. Virginia (Justice Stevens 2002) – the mentally retarded are to be categorically excluded from execution.
Why:
1-deterence and retribution do not apply to the retarded, and
2-the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty (locket v. oh)

Employment Discrimination – ADA Title I

Does the P have a disability?

Note: When Congress amended the ADA in 2008 it stated the intentions to “be interpreted consistently with how courts had applied the definition of disability of a handicapped individual under the Rehabilitation Act of 1973 and specifically approved of the reasoning of the SC in (the below case), which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of ’73.

§ 12102(2) Disability (under general provision)
§ A physical or mental impairment that substantially limits one or more major life activities
a. § 1630.2(h-j): Physical or mental impairment; Major Life Activity; Substantially limits
§ A record of such impairment
§ 1630.2(k): Record of such impairment
§ Being regarded as having such an impairment
§ 1630.2(l): Regarded as having such an impairment
a. Has a physical or mental impairment that does not substantially limits one of more major life activities
b. Has a physical or mental impairment that substantially limits major life activities only as a result of attitudes of others towards the impairment
c. Has none of the impairments but is treated by the covered entity as having a substantially limiting impairment.
Prong 1 (physical or mental impairment) (EEOC regulations 1630.2(h)

Physical or Mental Impairment:

· Bragdon v. Abbott – (found that stage one HIV was still an impairment)
i. Originally the Health, Education and Welfare (HEW) was in charge of administering regulations for the Rehabilitation act of 1977
ii. The HEW definition was: (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: (lists off all major body systems); (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
iii. The HEW decided against including a list of disorders constituting physical or mental impairments, out of concern that any specific enumeration might not be comprehensive.
iv. In 1980 regulatory control was switched to the AG but the provisions above were adopted untouched
· Possible Issues:
· Contagious Diseases
i. A person suffering from a contagious disease can be considered as having a disability (School Board of Nassau County v. Arline)
ii. The issue of contagious diseases is not covered under this analysis. The issue of contagiousness goes to the question of whether an individual is qualified or more under direct threat.
· Voluntariness and Mutability
i. Nothing in the language where the ADA cares about how the disability came about in determining if the petitioner is disabled.
ii. Condition doesn’t have to be immut