Americans with Disabilities Act

  • March 23, 2015

    by Caroline Cox

    Nina Totenberg of NPR previews today’s oral arguments for a Supreme Court case that considers whether a Confederate flag on a license plate is an exercise of free speech.

    At Hamilton and Griffin on Rights, Leslie Shoebotham considers City and County of San Francisco v. Sheehan, in which the Supreme Court will examine what duties the Americans with Disabilities Act places on police officers.

    The Editorial Board of The New York Times argues that in a case before the Supreme Court about the Clean Air Act, the Court should not limit the EPA’s authority to carry out the law’s purpose.

    Chris Geidner writes at Buzzfeed about Jim Obergefell, a plaintiff in the Supreme Court challenges to state bans on same-sex marriage.

    At the New Republic, Ian Millhiser claims that the Supreme Court cannot be trusted to protect voting rights.

  • November 4, 2013
    Guest Post
    by Sam Bagenstos, Professor of Law, University of Michigan Law School; former Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice
     
    The Americans with Disabilities Act (ADA) is our nation’s Emancipation Proclamation for people with disabilities, and it is the envy of the world.  The United States is far more accessible than any other nation.  Americans with disabilities have far greater opportunities to participate in the mainstream of political, civic and economic life than do individuals with disabilities in other countries.  Although our nation has not yet fully realized the promise of the ADA, we are far ahead by any international standard.  The point is sometimes hard for me to remember as I spend my time fighting to ensure that states and private entities comply with the ADA.  But every time I meet with students or activists with disabilities from other countries, they heap praise on America’s commitment to accessibility and inclusion.
     
    But America’s leadership on disability access has been drawn into question, because we have not yet ratified the UN Convention on the Rights of Persons with Disabilities (CRPD).  This convention, colloquially known as the Disability Treaty, embeds the principles of the ADA in international human rights law.  It was opened for signature in 2007 and came into force in 2008 when 20 countries ratified it.  President Obama signed the treaty in 2009, but the Senate has refused to ratify it.  Last December, a ratification vote narrowly failed, with the measure receiving 61 of the necessary 67 votes in the Senate.
     
    The Senate is poised to take up the treaty again soon, with a hearing in the Foreign Relations Committee scheduled for this week.  This time around, here’s hoping the Senate heeds the counsel of the treaty’s bipartisan band of supporters—including such Republican stalwarts as former President George H.W. Bush, former Senate Republican Leader Bob Dole, former Attorney General, Senator and Governor Dick Thornburgh, 2008 Republican presidential nominee Senator John McCain and former Secretary of Homeland Security Tom Ridge—and consents to ratification.
  • February 19, 2013
    Guest Post

    by U.S. District Court Judge Robert W. Pratt, Southern District of Iowa


    In late January, U.S. Sen. Tom Harkin (D-Iowa) announced he would retire when this session of Congress ends in December, 2014. I have known Tom Harkin since we worked together as young lawyers at the Polk County (Des Moines, Iowa) Legal Aid Society. The first paragraph of any article about Harkin must mention the Americans with Disabilities Act, the landmark civil rights legislation outlawing discrimination against those with disabilities passed in the congress of 1989-90. This is as it should be because that law has literally changed the face of America but there is so much more, however, that most people do not know about his work.

    While at Polk County legal aid as a young lawyer he lobbied the Iowa legislature to pass the Uniform Consumer Credit Code, lobbied to eliminate the sovereign immunity for tort liability for governments, worked against those who wanted to raise the interest rates for consumers and challenged in the Iowa Supreme Court a loitering ordinance that was used indiscriminately against the poor.

    Although Iowa is now a politically competitive state, it was not always so.  From the time of the Civil War, just as southern states were solidly Democratic, Iowa was solidly Republican.  It was once common wisdom that “Iowa would go Democratic when hell went Methodist.” Remarkably   Harkin, during his political career has defeated five incumbent members of Congress, and is the only Democrat in Iowa’s history to be re-elected to the U.S. Senate. Along the way he has helped Iowa’s state Democratic Party to be one of the most progressive and best organized in the country. Harkin’s political legacy in Iowa is secure because of that and also because so many of his former staff and campaign people are prominent in today’s progressive movement.         

  • June 20, 2012
    Guest Post

    By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families


    Fairness and equal opportunity are among our nation’s most basic values. They are especially critical in the workplace due to families’ increasing dependence on the wages of both men and women. That’s why Congress has passed landmark civil rights laws designed to protect workers’ right to hold jobs and provide for their families free from harmful discrimination. Yet, just last year, the United States Supreme Court eroded that right with its decision to deny more than one million women the ability to join together to challenge the discriminatory practices of the nation’s largest private employer. Fortunately, Congress now has the chance to undo the damage. 

    The Supreme Court’s decision in Wal-Mart v. Dukes was a devastating blow to the right of all workers to combat systemic discrimination in the workplace. In short, the Court said that Betty Dukes – a female greeter at Wal-Mart who received lower pay and fewer promotion opportunities than her male co-workers – could not join with other female Wal-Mart workers to hold the company accountable for unlawful widespread discrimination through a class action lawsuit. In doing so, the decision created significant barriers to justice for future victims of discrimination.

    Now, workers who seek to challenge the widespread discriminatory practices of their employers must meet stringent new standards to show that their claims are similar enough to be joined together. This makes it more difficult for workers to challenge discrimination that occurs through the subjective judgments that often factor into personnel decisions. And it opens the door for companies to hide behind the existence of written nondiscrimination policies, despite evidence that discrimination exists in practice.

    It should not be so difficult for workers who suffer discrimination to combat unlawful employer practices and have their day in court. The Equal Employment Opportunity Restoration Act of 2012, which was introduced today, would reverse the damage done by the Wal-Mart decision and restore the right of workers to join together to challenge systemic discrimination. It is critical legislation that would give workers who suffer from unlawful practices a fighting chance.

  • January 13, 2012
    Guest Post

    By Leslie C. Griffin, Larry & Joanne Doherty Chair in Legal Ethics, University of Houston Law Center


    The EEOC and Cheryl Perich lost 9-0 in the Supreme Court when the Court dismissed schoolteacher Perich’s Americans with Disabilities Act [ADA] lawsuit against Hosanna-Tabor Evangelical Lutheran Church and School. The Court for the first time approved the ministerial exception, a rule that the state and lower federal courts had used for forty years to dismiss lawsuits by “ministers” against their religious employers, including churches, elementary and secondary schools, universities and hospitals.

    One of the arguments in the amicus brief I filed on Perich’s behalf concerned the Court’s leading free exercise precedent, Employment Division v. Smith. In Smith, the Court held that two Native American drug counselors who used peyote in a religious ritual could be denied unemployment compensation benefits because the criminal laws prohibit drug use. The most famous language from Smith is that all citizens are subject to “neutral laws of general applicability” because to permit exceptions from the criminal law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

    Many supporters of religious freedom detested Smith for its incursion on free exercise. In other words, they believed that religious freedom should trump the law. In contrast, I agreed with Smith’s holding that religious belief should not be superior to the law of the land. I defended Smith because I think our constitutional system depends on a shared system of law. To exempt religious citizens from the laws undermines the rule of law. For the ministerial exception, I argued that, just as Alfred Smith had to obey neutral drug laws of general applicability, so too did Hosanna-Tabor Evangelical Lutheran Church and School and other religious employers have to obey the antidiscrimination laws.

    Chief Justice John Roberts’ opinion for a unanimous Court squarely rejected that argument. Although the Chief Justice conceded that the ADA is a neutral law of general applicability, which presumably could be applied to Hosanna-Tabor under Smith, he quickly distinguished Hosanna-Tabor from Smith:

    a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

    This is a strange argument in the context of the ministerial exception. In terms of religious freedom, the ingestion of peyote is a profound religious ritual with a long American history predating the Constitution. In sharp contrast, the ministerial exception involves cases where employees allege disabilities discrimination, retaliation, pregnancy discrimination, sexual harassment, hostile work environment, unequal pay, race discrimination, gender discrimination, and other civil rights violations. Women clergy, for example, sue for pregnancy discrimination, sexual harassment, hostile work environment and unequal pay. Other ministers sue for disabilities discrimination. Many of these “ministers” have been schoolteachers or non-ordained personnel who did not realize they were “ministers” until their lawsuits were dismissed.