Justice Not Blind when it Comes to Disabled Library: LIF-SOC Keywords: DISABILITY ADA DISCRIMINATION LAW JUSTICE SUPREME COURT AR Description: In 1999, the Supreme Court passed a series of decisions stating that individuals who use "mitigating measures" to correct or ameliorate their disabilities may not be protected under the ADA. An Arkansas researcher believes this precedent may leave many Americans vulnerable to discrimination in the workplace.
FOR RELEASE: TUESDAY, AUG. 27, 2002
CONTACT: Kay Schriner, research professor, School of Social Work, Fulbright College (479)575-6417, kays at uark.edu
Allison Hogge, science and research communications officer (479)575-5555, alhogge at uark.edu
MITIGATING MEASURES MAY DISRUPT JUSTICE IN DISABILITY DISCRIMINATION CASES
FAYETTEVILLE, Ark. - The National Institute on Disability and Rehabilitation Research has awarded University of Arkansas researcher Kay Schriner its Distinguished Switzer Fellowship - a $55,000 grant that Schriner will use to determine whether federal courts are tripping over the definition of disability on their way to delivering justice.
When Congress passed the Americans with Disabilities Act (ADA) in 1990, policy-makers, researchers and activists heralded it as the civil rights act for individuals with disabilities. Over the past 12 years the ADA has implemented widespread improvements in accessibility and accommodations for persons with disabilities, but its title on employment rights has delivered lackluster protection for individuals who suffer discrimination in the workplace.
Schriner, a research professor in the UA School of Social Work, has conducted more than 15 years of research on disability policy and law, and she believes the problem may rest in the way that courts interpret the very definition of disability. For years, federal courts accepted an earlier federal definition that an impairment that limited a person's ability to engage in major life activities qualified that person as an individual with a disability.
"You didn't have to worry about proving your disability. You just got into court and made your case about the discriminatory behavior you encountered," Schriner said. "That's consistent with the tradition of civil rights laws in our country. We usually don't make people prove they're black or prove they're female before they can file a discrimination lawsuit."
But in 1999, the Supreme Court handed down three decisions on disability discrimination cases that interpreted the definition differently and set the stage for lower federal courts to follow suit. Called the "Sutton Trilogy," these decisions stated that any person using "mitigating measures" to correct or ameliorate their disability might not be able to claim protection under the ADA.
"When these decisions came down, it caused a gasp of disbelief in the disability policy community because Congress had specifically stated in the legislative history of the ADA that mitigating measures were not to be taken into account," Schriner explained.
"It's a troubling precedent because if you take this reasoning to its logical conclusion then a diabetic who takes insulin cannot be covered under the ADA. A hard of hearing person who wears a hearing aid cannot be covered. A person who uses a wheelchair can't be covered," she added.
In addition to narrowing the range of people who can file lawsuits under the ADA, this precedent also may narrow their chances of obtaining legal counsel or even seeing the inside of a courtroom, Schriner said. Past research indicates that 84-98 percent of disability discrimination cases have been decided in favor of the employers rather than the individual filing the suit. Considering the low odds of winning a substantial award, more and more plaintiff lawyers may be turning away clients with disabilities.
To measure the impact of the Sutton decisions on legal proceedings and outcomes over the past three years, Schriner's research will address two overarching questions. First, she will collect data on individual cases, recording the plaintiff's type of disability and job, the type of discrimination alleged, the district in which the suit was filed - examining numerous factors to assess their impact on the outcome of the case. In particular, she hopes to identify factors associated with pro-plaintiff decisions.
Schriner also intends to pore over the written opinions of federal court cases dealing with disability discrimination over the past three years. By studying judges' comments, she can glean a clearer picture of how federal districts are interpreting the ADA and the population it protects. Prior to the 1999 Sutton decisions, only one of the federal districts took mitigating measures into consideration in ADA lawsuits. Schriner's research will determine how the other districts are implementing the new precedent.
The decline of legal protection and representation that may result from more widespread consideration of mitigating measures could have a devastating impact on the disability community, Schriner said - particularly in light of the difficulty these individuals face obtaining employment in the first place. Unemployment rates consistently hover at two-thirds of this population, despite the fact that many could enter the workforce if employers provided a positive environment and minimal accommodations, she said.
If Schriner's research shows that the Supreme Court's definition of disabled individuals interferes with the ADA's efficacy in protecting civil rights, these individuals may have to consider a different approach to discrimination lawsuits, she said.
Some plaintiffs have started bringing reams of information and expert testimony into court to attest that their physical or medical conditions continue to impact their daily lives in spite of their use of mitigating measures. Schriner notes that this tactic has enabled some plaintiffs to move forward with their lawsuits. But she points out the high cost of such research and testimony and suggests that some lawyers may not be willing to undertake those costs if they anticipate a modest award.
Another alternative may be to rely on state anti-discrimination laws, rather than seeking justice at the federal level. "It's an option, but it's not ideal," Schriner said. "Different states have different laws, and some people may live in areas of the country where their rights are not adequately protected."
But the best way to protect the civil rights of individuals with disabilities may be to bypass the courts altogether and concentrate on raising awareness about disability issues in the general public, Schriner said. Employers need to be informed about ways of accommodating employees with disabilities - particularly that such accommodations may be far less expensive than they expect. Further they should be exposed to research which shows that employees with disabilities often out-perform their non-disabled peers.
"We have to help the public understand that there are many ways to integrate people with disabilities into the workplace without involving the courts or the legal process," Schriner said. "Sometimes the law is not the perfect instrument of social change."
The National Institute on Disability and Rehabilitation Research is a division of the Office of Special Education and Rehabilitation Services in the U.S. Department of Education. The institute awards ten Switzer Fellowships each year to fund research ranging from medicine and rehabilitation to the social sciences. The 2002 award represents Schriner's second Switzer Fellowship, a distinction rarely bestowed upon a single researcher. Her first was awarded
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