Americans with Disabilities Act

  • 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.

  • 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.