ADA

  • September 7, 2011
    Guest Post

    By Gary C. Norman, a Commissioner of the Maryland Civil Rights Commission


    Accessible parking, seating and restrooms at theaters, curb cuts, and an ever-increasing presence of assistance dogs in public venues constitute but a few examples of the outcomes of a “comprehensive declaration of equality”, the Americans with Disabilities Act of 1990, as amended, and its corollary statutory schemes enacted in the several states. The majority of people with or without disabilities desire to be integral to the social fabric of their community, to age in place within their homes and to participate in the social life of their neighborhoods. The 2010 survey entitled, The ADA, 20 Years Later, revealed that people with disabilities still constitute the poorest members of our communities, bereft of equal opportunities for living, learning, and earning. Therefore, my concise set of thoughts contained below will provide one strategy to ensure that people with disabilities of any age and older adults who may not self-identify as being disabled have the same access to these fundamental privileges, fostering their inclusion in communities.

    In the experience of this attorney and Civil Rights Commissioner with a disability, there is continued need for translation of this law enacted 21 summers ago into practice in a way that maximizes the integration of the largest and poorest minority population in our neighborhoods, people with disabilities.  For there to be a genuine translation of the law into daily acceptance and compliance, people with disabilities of any age need to be regularly visible and active within the marketplace, the workplace, and in the schoolhouse. A personal regular experience might clarify this point. Partnered with a guide dog, it is rare that my wife and I observe more than just us and my furry sidekick Pilot at an upscale bistro, spa, or hotel. An approach that this Civil Rights Commissioner believes states should increasingly apply to ensure that more and more of our citizens can be fully integrated or “age in place” is property tax forgiveness to homeowners with disabilities of any age or homeowners with military or first responder related service disabilities.

  • August 10, 2011
    Guest Post

    By Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief


    Do religious institutions get a categorical free pass to discriminate against certain employees, regardless of the reason?  That issue lies at the heart of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC), a case now before the U.S. Supreme Court.  In a friend-of-the-court brief filed yesterday by the ACLU, the ACLU of Michigan, and a coalition of religious liberty organizations, we argue that the answer must be a resounding "no."

    The case involves a lawsuit under the Americans with Disabilities Act (ADA) filed by the EEOC and Cheryl Perich, a school teacher of primarily nonreligious subjects like social studies, math, and science, against Hosanna-Tabor, a church-run Lutheran grade school.  Perich and the EEOC claim that the school summarily fired Perich after she took a leave of absence to treat her narcolepsy and in retaliation for asserting her ADA right to be free from such discrimination.

    In response, Hosanna-Tabor has argued that, under a "ministerial exception" to civil rights laws like the ADA and Title VII, the federal courts are constitutionally barred from even considering Perich's claims.  As interpreted by the lower courts, the ministerial exception generally grants a religious organization immunity from employment discrimination suits brought by "ministerial" employees -- that is, those employees primarily engaged in leading the faith and advancing its religious mission.  (Until now, the Supreme Court has never squarely addressed this issue.)  The court of appeals in the Hosanna-Tabor case, however, refused to apply the exemption to Perich's claims, and we agree that the case should go forward.

  • July 30, 2010
    Guest Post

    By Roger Bearden, Director of the Disability Law Center at New York Lawyers for the Public Interest (NYLPI). For more information about NYLPI, visit its Web site.
    We have much to celebrate on the 20th anniversary of the Americans with Disabilities Act, but for many individuals with disabilities who continue to be confined in institutions, their day of celebration has yet to come.

    The ADA set out a comprehensive mandate to eliminate discrimination against individuals with disabilities. While some forms of discrimination are apparent, others have proven more insidious, such as the decades-old practice of confining individuals with disabilities to institutions.

    In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court considered the case of two women in Georgia who each had been confined in a state psychiatric hospital for several years despite the determination by their treating professionals that they could live and receive care in the community. The Court held that unjustified isolation of individuals with disabilities violated the ADA and an individual with mental illness may sue a state for failing to serve him or her in the most integrated setting appropriate to his or her needs.

  • May 13, 2010
    Guest Post

    By Michael R. Masinter, Professor of Law, Shepard Broad Law Center, Nova Southeastern University
    It's difficult to overstate just how disastrous a decision the U.S. Court of Appeals for the Eleventh Circuit recently issued regarding the Americans with Disabilities Act (ADA). The Eleventh Circuit ruling dismissed a lawsuit challenging a Florida county's lack of voting machines for disabled individuals. That decision, American Association of People with Disabilities v. Harris, holds that a violation of Title Two regulations enacted pursuant to an express grant of rulemaking authority cannot be the basis for a claim asserting a violation of Title Two's various prohibitions, and does so largely by relying on Alexander v. Sandoval.

    Sandoval forbade private enforcement of Title VI disparate impact regulations because Title VI of the Civil Rights Act of 1964 is spending clause legislation that SCOTUS previously had construed only to forbid intentional discrimination. Because under the Roberts and Rehnquist Courts spending clause statutes were not ordinarily privately enforceable, those that are privately enforceable must, we are told, contain within the statute the source of potential state liability to private parties given the contractual nature of liability - it arises from accepting federal funds, so states must know what comes with the money, and they know from the statute, not from regulations later enacted, what can expose them to liability by accepting that money. Since Title VI only forbade intentional discrimination, disparate impact claims relying on regulations could not be said to be claims for a violation of Title VI, and therefore the regulations, even if valid, were not privately enforceable.

    Leaving aside everything that is wrong with the Court's treatment of spending clause statutes, Title Two of the ADA isn't spending clause legislation, it is legislation enacted under section five of the Fourteenth Amendment, which gives Congress express authority to impose federal law on states irrespective of whether they accept federal dollars. Congress legislates under section five as a sovereign, not as a dispenser of federal money.

  • November 23, 2009

    The Genetic Information Nondiscrimination Act takes effect today. According to the National Human Genome Research Institute, "The long-awaited measure, ... debated in Congress for 13 years, will pave the way for people to take full advantage of the promise of personalized medicine without fear of discrimination."

    The Los Angeles Times reports

    The most sweeping federal anti-discrimination law in nearly 20 years takes effect today, prohibiting employers from hiring, firing or determining promotions based on genetic makeup.

    Additionally, health insurers will not be allowed to consider a person's genetics -- such as predisposition for Parkinson's disease -- to set insurance rates or deny coverage.

    [Image via Lawrence OP.]