Disability Law and Policy
Author:
Blanck, Peter
Edition:
1st
Copyright Date:
2020
33 chapters
have results for Disability, Civil Rights Law, and Policy
Chapter 2 Ada History And Philosophy 94 results (showing 5 best matches)
- The NCD concluded that disability rights legislation must be part of the larger civil rights framework in the United States. It determined that then-existing laws prohibiting disability discrimination were not as broad as those barring discrimination on the basis of race, color, sex, religion, and national origin. Private employers, public accommodations, and housing providers were covered by other civil rights laws, but not by disability rights laws and policies.
- Court did focus on the key issue that sets disability rights law apart from other branches of civil rights law. Treating qualified applicants and employees equally, without regard to whether they have a disability and, therefore, without accommodation, leaves people with disabilities in a disadvantaged position. This is because external factors—stairs, no Braille materials, no sign language interpreter—may significantly affect their ability to participate equally in jobs or programs and activities. But these external or ecological factors do not necessarily render these people with disabilities incapable of performing key or essential functions of those particular jobs. In essence, this conception reflects the Rights Model of disability discussed earlier.
- The NCD’s 1986 Report was a significant step forward. It set the stage for issues that, even today, are at the forefront of debates on disability law and policy. At that time, the NCD estimated the number of Americans with disabilities at between twenty and fifty million persons, although a precise figure was not available. In fact, as will be discussed in Part 2 of this primer, a clear-cut number of Americans with disabilities has never been fully determined. This number is difficult to pinpoint, given the episodic nature of many conditions and the variable onsets associated with an aging population. This indeterminacy continues to affect the evolution of disability law and policy.
- The Rehabilitation Act regulations were not the only venue in which legislators were grafting “reasonable accommodation” duties onto civil rights laws. In 1973, California prohibited employment discrimination on the basis of “physical handicap,” later enlarged to include “medical condition,” in its employment discrimination statute. Likewise, the California Department of Fair Employment and Housing (“DFEH”), which is responsible for enforcing the employment anti-discrimination provisions, adopted a regulation in 1980 that echoed the Rehabilitation Act Section 504 regulations. That regulation requires an employer to make “reasonable accommodation to the disability of any individual with a disability” if the employer knows of the disability and unless the employer can “demonstrate that the accommodation would impose an undue hardship.”
- [This is] the world’s first comprehensive declaration of the equality of people with disabilities, and evidence of America’s leadership internationally in the cause of human rights. With today’s signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through the closed doors, into a bright new era of equality, independence, and freedom.
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Preface 25 results (showing 5 best matches)
- In the United States and around the world there are ongoing dramatic legal and policy developments, and strong practical and academic interest, in disability law and policy. This primer considers the development of disability rights law and policy in the United States, with additional commentary on international disability law. It provides a practical summary of disability rights law and policy, as well as the law of the ADA, with the main parts of the book sub-divided into eight parts.
- My ambition is to help readers capture the expansive impact of law and policy on the lives of persons with disabilities. But disability law and policy is a complicated and transdisciplinary area. To that end, this primer paints with a broad brush a view of social, economic, political, and historical patterns surrounding the people whose lives it touches. It employs a disability law and policy lens, or framework, reflective of the modern disability Rights Model that began to influence government policy in the 1970s. Both the Rights and the “Social” Models of disability, discussed in this primer, view persons with disabilities as a minority group, entitled to the same hard-won legal protections for equality that have emerged from the struggles of African-Americans, women, individuals with differing sexual orientations and gender identities, and others.
- Part 7 reviews areas in U.S. and international disability law and policy beyond the ADA and the IDEA. In the U.S., disability law and policy encompass topics of welfare and health care, health insurance, economic security and empowerment, tax law, and genetic discrimination, among others. As with the IDEA, federal governmental disability laws and policies often complement, but sometimes conflict with, the ADA’s principles for full and equal integration in society. This Part introduces developing ADA law and the right to equal access to the Internet, with its online marketplace and on-demand services in the “gig economy.” It then goes beyond U.S. borders to overview the United Nations’ 2008 Convention on the Rights of Persons with Disabilities (“CRPD”), perhaps the most significant international initiative in recent years. There is much to learn using a comparative lens to view disability law and policy, taking into account the wave of efforts taking place globally.
- Disability Law and Policy
- This primer is an extension and update of Blanck, Waterstone, Myhill, Hill, and Siegal’s
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Foreword 46 results (showing 5 best matches)
- My story is one of many in the modern disability rights movement. In
- Disability Law and Policy
- Disability Law and Policy
- We believed progress could be accelerated by law and worked to reform policies and programs through legislation. In the early 1980s, we also realized that passing law after law, and starting program after program, would not address the underlying attitudinal, political, and economic resistance to equality for people with disabilities. It was obvious that we needed to follow other minorities and women in efforts to achieve a broad‑based commitment to equality. Replicating the civil rights framework provided mechanisms for enforcement that never could be granted alone by a constitution or an elaborate framework of overlapping edicts.
- There are about one billion people with disabilities in the world today. Most of these people live in developing countries in the Southern Hemisphere and have few material resources, few supports, and virtually no protection from abuse or discrimination. But even in wealthier countries, where services are abundant and where rights are established in law, people with disabilities comprise the largest subset of the population who are impoverished. Our rights are seldom fully acknowledged and enforced. Disability advocates and people with an interest in civil society should be alarmed by the realities of disability worldwide.
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Chapter 18 “Onward Disability Law And Policy 47 results (showing 5 best matches)
- In U.S. disability law and policy, the Social Model has shifted focus from individual impairment towards civil rights in furtherance of full and equal participation in our democracy. This is the way the U.S. has decided to guarantee the rights of people with disabilities and help mobilize them to fight for antidiscrimination and equal rights legislation under laws like the ADA and the IDEA. The Universalist, Human Rights Model in the CRPD may prove to be differently effective. Time will tell.
- Yet, models are always simplified portraits of complex processes, and they often provide incomplete pictures of reality. No one model of disability fully captures the complete view. Rather than seeking the one “best” or “right” model, therefore, it is valuable to recognize the strengths and limitations of each for understanding disability law and policy, and for motivating political action.
- Although it is tempting to measure at this (or any) point in time the impact of these disability laws and policies on the lives of persons with disabilities across the globe, it would be an oversimplification. As with all sweeping law and policy endeavors, the ADA and IDEA continue to evolve in the unique American context. The CRPD similarly reflects a still-developing global commitment to the human rights of persons with disabilities. It may take generations to fulfill the aspirations of these mandates, and to undo centuries of segregation, stigmatization, poverty, illiteracy, and discrimination on the basis of disability.
- Whatever one’s perspective, there are many widely-held assumptions reflected in Justice Scalia’s dissent. Is his view emblematic of long-held misconceptions about “disability” in general, and of disability rights under the ADA, in particular? Does it inform as to the nature of “disability” and who may be a “qualified” individual with disabilities under the ADA? Does it take an overly narrow view of what may be “essential” tasks, and accordingly of the possibility of accommodations to level the playing field, but not change it? Does it argue in the absence of, or in contradiction to, the real-world influence of disability law and policy?
- At its core, this primer’s tour of disability law and policy confirms that “disability” is not fixed and dichotomous, but is instead a fluid and continuous social, cultural, historical, and legal concept defined for human beings by human beings. It is an intersectional idea, not uniform, but shaped by culture and individual lived experience. This is a new, “Universalist” (and relational) Model of disability. The Universalist approach recognizes that across the life-span, human beings experience strengths and limitations. In some cultures or environments, these limitations are called impairments or disabilities, and even those who do not currently have disabilities are “temporarily able.” The Universalist Model is thus inclusive. It applies to people who do not currently experience disability, so political involvement on disability issues is seen as having broader societal benefits. Disability is not a rights-based minority issue, but a collective experience of humanity. All of us...
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Chapter 1 Introduction 98 results (showing 5 best matches)
- The disability Rights Model that began to influence American law and policy in the 1970s viewed persons with disabilities as a minority group entitled to the same hard-won legal protections for equality that emerged from the civil rights struggles of African-Americans and women. Proposing disability as a social and cultural construct, the disability Rights Model focuses on laws and practices that subordinate persons with disabilities. It insists that government secure the equality of persons with disabilities by eliminating the legal, physical, economic, and social barriers that preclude their full involvement in society.
- As part of the Civil Rights era of the 1960s, minority groups came to view equal access to society as a fundamental right. Disability rights activists also began to bring access rights to the forefront. Statutes began to address the integration of people with disabilities into society as a remedy for discrimination. These laws at the federal and state levels increasingly required that society, as opposed to the individual with a disability, make changes to ensure equal access and integration. Their approach drew closer to the eventual ADA Rights Model.
- These are questions considered in disability law and policy. Yet, even today, there are no easy answers to such inquiries, in part because the area is constantly evolving. This primer takes a tour of the emerging insights and controversies in law and policy affecting persons with disabilities. Its primary focus is on the federal Americans with Disabilities Act (“ADA”) of 1990, as amended by the ADA Amendments Act (“ADAAA”) of 2008. Along the way, it considers the history behind the ADA and its passage. It examines how other American disability laws and policies may both complement and clash with the ADA. It also presents ways in which other countries and international organizations approach disability law and policy.
- The Civil War pension system evolved during a unique time of public views about disability, and it was supercharged by partisan, economic, and social forces. Social norms regarding disability had not yet developed, and disability law and policy were non-existent. Deep-seated stigma and discrimination against the veteran with a disability affected pensions even though the law was drafted as neutral. The unfairness in its administration was further amplified when race and ethnicity were added to the mix. Political advantage made the “disabled” an easy target in calls by critics for reform of the welfare and health care laws.
- This chapter begins with a historical overview of disability law and policy. It then moves to the direct predecessor of the ADA, the Rehabilitation Act of 1973. As will become evident, many factors—historical, political, economic, social, cultural, and attitudinal—have shaped, and are still influencing, disability law and policy.
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About The Author 8 results (showing 5 best matches)
- Disability Civil Rights Law and Policy: Cases and Materials
- Before his appointment at Syracuse, Blanck was Kierscht Professor of Law and Director of the Law, Health Policy, and Disability Center at the University of Iowa. Blanck is Honorary Professor, Centre for Disability Law & Policy, at the National University of Ireland, Galway. Blanck received a Juris Doctorate from Stanford University, where he was President of the
- Routledge Handbook of Disability Law and Human Rights
- Blanck is Chairman of the Global Universal Design Commission (“GUDC”) and President of Raising the Floor (“RtF”) USA. He is a former member of the President’s Committee on Employment of People with Disabilities and a former Senior Fellow of the Annenberg Washington Program; he has been a Mary Switzer Scholar. Before teaching, Blanck practiced law at the Washington D.C. firm Covington & Burling, and he served as law clerk to the late Honorable Carl McGowan of the United States Court of Appeals for the D.C. Circuit.
- e-Quality: The Struggle for Web Accessibility by People with Cognitive Disabilities
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Chapter 17 International Disability Rights Law 45 results (showing 5 best matches)
- Likely the most significant legal and policy development in the disability arena in recent history is the entry into force in 2008 of the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”). The CRPD has been referenced in prior parts of this primer. This chapter provides a brief tour of disability law and policy, with a focus on the culmination of the disability (Human) Rights Model embedded in the CRPD. It begins by noting the magnitude of the issues facing more than one billion people with disabilities across the globe. It proceeds to consider the actions by the United Nations that led to enactment of the CRPD. Finally, elements of the CRPD are discussed with regard to aspects of a global disability law and policy framework.
- “Human rights” encompass civil and political rights, such as the rights to free speech and assembly, the right to vote, and due process rights in civil and criminal proceedings. They include economic and social rights, such as the right of workers to organize. They include the right to be free from torture, and heightened protection for at-risk groups, such as women and children. Those at-risk groups include people with disabilities.
- It would be misleading to look at disability law and policy only through a United States periscope. Other “states”—as countries are referred to in international discourse—confront the same or similar issues and challenges as does the United States. But many countries have dealt with disability law and policy in unique ways. Some, especially in Europe, have been dealing with the issues even before “disability rights” became a recognized branch of U.S. law.
- It is possible to view the development of disability rights law and policy in the United States and elsewhere as a more general expression of human rights law. Since the end of World War II, nations have signed a range of documents that aim to improve the international protection of human rights. International human rights are distinct from International Humanitarian Law, which deals with the treatment of individuals in situations of armed conflict, commonly known as the law of war.
- Some countries have developed legal regimes in parallel with the United States. Others are just beginning to address disability law and policy in their legal and social welfare systems. Unique cultural, regional, and economic differences affect their responses and actions. Myriad scholarly and practical treatments are devoted to examination of the comparative differences in disability law and policy. In particular, a regional approach to regulation of disability law and policy is evidenced at the level of individual states in collaboration with the United Nations, and with regional groups of states, such as the Organization of American States, the European Union, and the African Union.
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Chapter 14 Domestic Disability Law And Policy 96 results (showing 5 best matches)
- What has opened up the area of disability law and policy internationally is perhaps the most significant legal development in the area in recent history: the entry into force, in 2008, of the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”), which is discussed in the final chapter of this Part. The CRPD represents another level of disability law and policy as between individual states and the United Nations. Regional states also have established policies keyed to the abilities of states in the area to respond. These regional initiatives—including the Organization of American States, European Union, and the African Union—are important to establishing and vindicating disability rights.
- Thus, in the disability policy framework, there are other, more direct policy tools that the U.S. government, and others, use to improve the lives and the social, civic, and economic participation of people with disabilities. Antidiscrimination laws may be said to provide “negative” rights, in that antidiscrimination law protects people with disabilities against adverse actions taken against them. By contrast, “social welfare” and “social support” programs may provide direct affirmative assistance to categories of people with disabilities. This may take the form of cash payments, as in the Social Security scheme discussed below. Or it may be in form of providing people with disabilities access to needed support and services, like health care, as through Medicaid or Medicare.
- Lastly, it is not possible to look at the disability rights project only through a parochial, U.S. periscope. Other “states”—as countries are referred to in international discourse—face many of the same issues and challenges in disability law and policy that the U.S. faces. They have dealt in their own ways with those issues. Some, especially in Europe, have been dealing with them since before “disability rights” became a recognized branch of law. Many countries have been developing legal regimes in parallel with the United States. Others are just beginning to address disability in their legal systems. Cultural and economic differences affect all of these responses.
- Next discussed is the interaction of disability and welfare policy. Unfortunately, as mentioned right from the start of this primer, even today social welfare programs often are based on outdated assumptions about the “inability” of people with disabilities. This human “Deficit Model” sometimes actually works against the empowering “Civil Rights” model embodied in the ADA. To illustrate, to qualify for Social Security Disability Insurance (“SSDI”), an individual who otherwise may be capable of certain jobs, perhaps with workplace accommodation, must nonetheless demonstrate a complete inability to work for a sustained period of time. The Supreme Court attempted to reconcile this issue in
- Programs and activities supported by TANF are subject to federal antidiscrimination laws such as the ADA, Section 504, and Title VI of the Civil Rights Act of 1964. However, an individual with a physical or mental limitation receiving TANF benefits does not qualify automatically as an “individual with a disability” under the ADA. As mentioned, many TANF recipients have undiagnosed disabilities, and their histories of disability do not establish a record of a substantially limiting impairment. As TANF agencies develop and maintain recipient profiles and track their progress, more information about participants’ records of disabilities may develop.
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Chapter 16 Disability And Tax Policy 32 results (showing 5 best matches)
- The goals of American tax policy, on both the individual and corporate levels, are to spur employment, asset accumulation, and economic independence for all Americans. The National Council on Disability (“NCD”), in its report
- Individuals with disabilities experience greater “gateway costs” to health care, personal assistance services (“PAS”), employment, transportation, housing, education, and technology than people without disabilities. The NCD finds that these “[g]ateway costs of living with a disability are more expensive than costs of living without a disability.” People with disabilities also face particular obstacles to escaping or avoiding poverty. Tax policy attempts to address some of these costs. However, it must be integrated into broader disability law and policy (for example, the Medicaid and Medicare programs discussed earlier in this Part) to help equalize opportunity for people with disabilities to engage in employment and other aspects of daily life.
- As obvious as it may seem, allowing people with disabilities the opportunity to save for their future is a transformative concept in U.S. disability law and policy. As highlighted at the beginning of this primer, self-determination and the right to make one’s own life choices are key elements for a meaningful and independent life. ABLE brings this concept into reality for persons with disabilities. It is important to ensure that beneficiaries have the tools to manage their newly established financial accounts. In an effort to ensure responsible management of these accounts and to bolster financial independence and self-determination, states also need to support financial literacy and educational components in their ABLE legislation.
- There are multiple reasons to believe that ABLE will be transformative at the individual and systems levels of disability law and policy. ABLE recognizes that families raising a child with a disability, and working-age adults with disabilities, have additional and significant costs associated with living with a disability. ABLE is transformative because the approach for determining eligibility for an ABLE account decouples the dual-pronged test of severe disability and “inability to work” that currently exists for determining eligibility for SSI and SSDI; that is, “paying people with disabilities not to work.” The Social Security Disability Insurance (“SSDI”) program was introduced earlier in Part 2, § 4.3, in connection with the Supreme Court’s decision in
- For many who advocate for inclusion of Americans with disabilities in the economic mainstream, however, the subject of tax policy is relatively unfamiliar and, as a result, underutilized. Tax policy has effects on the “supply side” by assisting individuals with disabilities to escape or avoid poverty, and on the “demand side” by encouraging businesses and employers to increase access and employment of people with disabilities.
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Endnotes 361 results (showing 5 best matches)
- For a review of the disability civil rights movement, see Nat’l Council on Disability, Achieving Independence: The Challenge for the 21st Century: A Decade of Progress in Disability Policy Setting an Agenda for the Future (July 26, 1996),
- President Obama signed into law Rosa’s Law, (Oct. 5, 2010), which changed references in federal law from “mental retardation” to “intellectual disability,” and references to a “mentally retarded individual” to an “individual with an intellectual disability.” , § 2. Rosa’s law goes beyond the IDEA and civil rights statutes discussed in this primer to reach acts using a Medical Model of disability.
- Part 7 (international human rights model of disability). note 4 (“We use the term civil rights a lot, but what exactly are these rights, and why weren’t they just inherently part of citizenship in a country with a bill of rights? Civil rights in general protect citizens’ freedom from governmental or other intrusion into their lives and guarantee that citizens can participate fully in civil and political life. If those rights are applied unequally to citizens or are on paper only but not robustly part of citizens’ lives, then specific legislation detailing how those rights should be protected and enforced if enacted.”).
- Gerard Quinn, Personhood and Legal Capacity: Perspectives on the Paradigm Shift of Article 12 CRPD, Paper presented at Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, Boston (Feb. 20, 2010),
- “The Right to Live in the World”: Disability Yesterday, Today, and Tomorrow
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Chapter 15 Disability And The Internet 77 results (showing 5 best matches)
- The rise of the disability civil rights movement, bolstered by the passage of federal and state antidiscrimination laws, coincided with technological advances that also began to enhance inclusion and equal participation in society for persons with disabilities. Fundamental to the wave of technological advances is the development of the Internet and its broad use across the world. The Internet offers increased connectivity between persons with disabilities and their employers and community, and it is making products and services available to people with disabilities who were previously excluded because of inaccessible facilities and materials.
- The Internet has transformed the nature of access to information. However, and ironically, many of the accompanying technologies have created new types of barriers to participation for people with disabilities. Full and equal societal participation increasingly depends on the ability to use the Internet. Equal access to the Internet by persons with disabilities is therefore a prominent topic of discussion in disability law and policy.
- Other shifts in disability law and policy are benefitting technology innovation and inducing market activity for accessible Internet sites, goods, and services. Vibrant economic activity in the technology market illustrates that laws like the ADA and Section 508 may foster technological innovation and economic activity in the Internet marketplace and service industries in ways unanticipated at the time these laws were passed. A tax credit is available to small businesses to offset expenses in complying with the ADA, such as website accessibility improvements.
- Griffin had never worked for the DOL, nor had any member of his immediate family. Nevertheless, he tried to access the Credit Union’s website and found it was not accessible because, among other issues, linked images lacked “alternative text.” Griffin sued under the ADA, arguing the Credit Union had failed to make reasonable modifications to its policies and practices that would make its site accessible. The District Court dismissed the lawsuit for lack of standing. Griffin appealed the ruling, claiming a general right of people with disabilities to sue under the ADA for Internet inaccessibility. The Fourth Circuit held that Griffin’s suit failed because he was not legally entitled to use the Credit Union’s services.
- Section 508 does not require private companies that market technologies to the federal government to modify the EIT products used by company employees or to make their Internet sites accessible to people with disabilities. Although the Section 508 standards do not apply to the states’ use and procurement of technology, most states are implementing policies, and in some cases enacting statutes, imposing accessibility standards to comply with their obligations under ADA Title II. These laws frequently parallel Section 508 with regard to state governmental services, purchase of IT products, website design, and hardware. In addition, the Department of
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Chapter 7 Reasonable Accommodation And Defenses 131 results (showing 5 best matches)
- Title I’s reasonable accommodation requirement does not distinguish between the rights of those individuals with actual disabilities and those individuals who are “regarded as” having a disability or have a “record” of disability. But do employers have a duty to accommodate employees who do not actually have a covered disability but fall into one of the latter two categories? The ADAAA answered this question, providing that covered entities under Title I do not need to provide a reasonable accommodation, or a reasonable modification to policies and procedures, to an individual who meets only the “regarded as” definition of disability.
- This portion of the Civil Rights Act of 1991 amends Title VII, and thus arguably only applies to employment actions on the basis of race, color, religion, sex, or national origin. It is unclear whether, as a strictly textual matter, this particular amendment embodied in the 1991 Act applies to employment claims for disability discrimination under the ADA. Nevertheless, in the first few years after this legislative change, many courts applied the framework set forth in the 1991 Civil Rights Act— factor, and no liability affirmative defense for same action—and not
- ’s deference to the employer policy in that case was because it was a policy, historically particularly favored in antidiscrimination law, or whether it was simply because it was a “disability-neutral” workplace rule. Many employers have in place neutral rules governing the kinds of actions needed to reasonably accommodate a worker with a disability, such as job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, and other accommodations.
- Congress acknowledged in the ADA that discrimination takes many forms, including paternalism and implicit bias. One insidious aspect of this type of discrimination is the assumption that people with disabilities are not competent to make informed and safe life choices in employment and other daily life contexts. This myth has been shown in the employment context in employers’ assumptions that persons with disabilities are likely to be injured in the workplace and thereby increase their exposure to liability and health insurance costs. In the ADA, Congress addressed discrimination resulting from subjective and over-protective qualification rules and policies, as well as intentional discrimination, that relegate individuals with disabilities to lesser and inferior jobs and foreclose their employment opportunities.
- (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
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Chapter 12 Prohibited Conduct 104 results (showing 5 best matches)
- Title III aims to provide “full and equal enjoyment” of “goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” to person with a disability. In general, Title III does not look retrospectively, at past harms. The remedies it gives to private parties are prospective and based on the Civil Rights Act of 1964. Therefore, only injunctive relief is available, including restraining orders, and no jury trial is available. Injunctive relief may include an order to alter facilities to make them readily accessible to and usable by individuals with disabilities. Examples of such relief include eliminating architectural barriers, requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods.
- The ADA provides for prevailing parties to recover reasonable attorney’s fees and litigation costs from the losing party. This is similar to the approach taken in other civil rights laws. Because damages are unavailable under Title III and, therefore, attorney’s fees cannot be paid on a traditional contingency fee basis, the recoverability of attorney’s fees by the prevailing party is important. In fact, recovery of attorney’s fees is important in all ADA cases, because many people with disabilities cannot afford the often-substantial costs of litigation.
- ILLUSTRATION 5: A car rental company has a policy that customers using cash must have been employed at their present jobs for a year or more. A responsible, cash-paying customer with other sources of income, who is unemployed due to a disability, applies to rent a car and is rejected. The ADA requires the company to reasonably modify its procedures to permit rentals by such individuals with other adequate disability-related sources of income such as SSDI, Veteran’s Administration disability benefits, and employer’s disability benefits.
- Service animals present issues not encountered with other personal assistance mechanisms for individuals with disabilities. Generally, a public accommodation must modify policies, practices, and procedures to permit the use of a service animal by an individual with a disability. In rare circumstances, accommodation may not be required because a fundamental alteration may result in the nature of the services or the safe operations of the public accommodation.
- the Third Circuit examined the relationship between Section 504 and ADA Title III in a case involving use of a service animal. The case brought into play several areas of the law previously discussed in this primer: Section 504’s requirement that covered entities provide qualified individuals with disabilities “meaningful access” to federally funded programs; Title III’s requirement of nondiscrimination in the full enjoyment of public accommodations; and the DOJ regulations interpreting Title III’s “reasonable modification” requirement providing that covered entities must modify their policies and practices for use of a service animal by an individual with a disability.
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Chapter 13 Idea 81 results (showing 5 best matches)
- This primer has discussed the ways in which ADA Title II and Section 504 of the Rehabilitation each cover adults and children with disabilities in public school and other settings. Title II forbids public entities from discriminating on the basis of disability and Section 504 applies this prohibition to federally funded programs and activities. Title II and Section 504 require that public entities make reasonable modifications to their policies and practices to avoid disability discrimination and accommodate persons with disabilities.
- Part 7 of this primer returns to the SDM paradigm, but this time in the context of the principles of the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”). CRPD Article 12 affirms that persons with disabilities have the human right to recognition as persons before the law.
- This chapter provides a quick tour of the IDEA. This law has particular and complementary relevance to principles established in the ADA as well as to the broader U.S. disability policy framework discussed in this primer.
- Why is it “huge” for the Supreme Court to endorse a better education aimed at independence and inclusion for children with disabilities? Because this is recognition of full acceptance in society. The IDEA, like the ADA, preserves this right for people with disabilities to enjoy governmental offerings in community settings, or in a “least restrictive environment” for housing, healthcare, employment, and education. This also means individuals with disabilities are to have a meaningful say over their life decisions.
- Because parents do not always want to pursue the IDEA procedures, a number of cases have addressed whether, and when, parents may proceed directly to federal court to enforce disability rights in the educational context. In general, exhaustion is required unless the student alleges injuries that cannot be redressed by the IDEA’s administrative procedures and remedies. Therefore, students with injuries that can only be redressed with monetary compensation may not be required to exhaust IDEA remedies. Exhaustion had been excused by some courts when students were seeking relief from a blanket policy applicable to students with disabilities generally, for example, under ADA Title II and Section 504 of the Rehabilitation Act, and not resulting from an individual student’s IEP process. However, some courts have required that even students with claims under the ADA and Rehabilitation Act must exhaust IDEA
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Chapter 11 Ada Title Iii 46 results (showing 5 best matches)
- were individuals with disabilities who purchased cruise tickets for departure from Houston, Texas. They filed a class action in the District Court for declaratory and injunctive relief under Title III. They asserted cruise ships are places of “public accommodation” requiring covered entities to make “reasonable modifications in policies, practices, or procedures” to accommodate individuals with disabilities, and to remove “architectural barriers, and communication barriers that are structural in nature” when “readily achievable.” They also alleged they were charged higher fares and surcharges, evacuation locations and equipment were not accessible, and the company reserved the right to remove from the ship individuals with disabilities whose presence endangered the “comfort” of other passengers. They contended the cruise ships did not make reasonable modifications in policies to ensure their full enjoyment of the services offered.
- Title II of the Civil Rights Act of 1964 also covers “public accommodations.” However, the Civil Rights Act definition is different and only covers places of transient lodging, restaurants, and places of exhibition or entertainment.
- Private clubs are exempt from Title III and are defined as those clubs exempted from coverage under Title II of the Civil Rights Act of 1964. Factors to determine whether a private entity constitutes an exempt private club include whether members exercise a high degree of control over club operations, the membership process is highly selective, substantial membership fees are charged, and the entity is operated on a non-profit basis. The club must not have been founded to avoid compliance with federal civil rights laws. A private club loses its exemption to the extent it allows nonmembers to use the facility as a place of public accommodation.
- In 2014, the DOJ entered into an ADA Title II settlement agreement with the Louisiana Supreme Court and its Committee on Bar Admissions. The agreement settled an investigation by the DOJ of alleged violations in Louisiana’s policies and practices for screening and evaluating applicants to the bar licensure examination and attorneys with mental health disabilities. The Louisiana courts were deemed a public entity under Title II, comparable to Title III private testing organizations.
- Courts have examined the scope of Title III prohibitions against discrimination on the basis of disability in the administration of standardized tests, such as the SAT and ACT college admission exams, along with the “flagging” of disability on such score reports. Title III claims have also been raised in regard to law school admissions exams, as well as attorney and medical licensing exams.
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Table Of Contents 97 results (showing 5 best matches)
Summary Of Contents 58 results (showing 5 best matches)
Chapter 3 Disability 77 results (showing 5 best matches)
- One of the main purposes of the ADA was to combat long-held assumptions, prejudices, and stereotypes about disabilities that have unnecessarily kept people with disabilities out of the workplace and other aspects of society. Part 1 of this primer discussed the historical development of such long-held biases, beginning with the Civil War pension scheme.
- The other main issue the Court addressed was whether Arline was “otherwise qualified” for the school teacher job. The Court’s separation of the question of whether a person has a disability from whether the person is “otherwise qualified” for a particular position made clear that contagiousness alone does not render a person unprotected by disability rights laws.
- As with Title VII of the Civil Rights Act of 1964, the courts that have considered the issue have held that the ADA includes a cause of action for workplace harassment on the basis of disability. The courts have relied on Title I’s prohibition of discrimination in the “terms, conditions, and privileges of employment” and analogized to similar language in Title VII that is the basis for race and sex harassment claims. Under Title VII, a plaintiff must show that “hostile work environment” harassment is harsh and invidious. Applied to disability, courts have imposed a parallel requirement that the workplace is “permeated with discriminatory conduct—intimidation, ridicule, insult—sufficiently severe or pervasive as to alter the conditions of employment.”
- The ADA also protects individuals from retaliation if they assert rights on behalf of individuals with disabilities, or if they encourage or assist people with disabilities to assert their rights. Each title of the ADA specifies protection of individuals who associate with individuals with disabilities.
- Protection from retaliation does not depend on the outcome of the enforcement action being pursued. The individual claiming retaliation need not have been legally correct when claiming the action she opposed was illegal. She simply must have a good faith, reasonable belief that she was asserting covered rights. However, to be protected activity, the individual’s actions must be based on alleged ADA violations. Merely advocating on behalf of individuals with disabilities for non-civil-rights matters will not result in protection from retaliation.
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Disability Law and Policy 2 results
Chapter 9 Statutory Background 44 results (showing 5 best matches)
- “Qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
- Regarding this historical experience, Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. Notably, Congress recognized the historical pattern of unconstitutional treatment in the administration of justice to persons with disabilities. In enacting the ADA, Congress understood that many individuals across the U.S. were being excluded from non-accessible courthouses and court proceedings by reason of their disabilities.
- Think of the ways you interact with your state and local governments. The government provides educational facilities, furnishes important social services, licenses various activities, and employs law enforcement officers, among other things. Before passing the ADA, Congress heard testimony from individuals with disabilities who documented accounts of government-sponsored discrimination in all of these areas. It concluded, as stated in the ADA’s Findings and Purposes section, that discrimination against individuals with disabilities persists in such critical areas as education, transportation, voting, communication, recreation, institutionalization, health services, and access to public services.
- In light of this history of discrimination, the Court concluded Title II was an appropriate response under Section 5 to enforce constitutional guarantees. Title II thus was found to be valid Section 5 legislation as it applies to cases implicating the accessibility of state judicial services. Further, Congress’s chosen remedy for this exclusion and discrimination, Title II’s requirement of program accessibility, was congruent and proportional to its object of enforcing the fundamental constitutional right of access to the courts. The unequal treatment of persons with disabilities in the administration of state judicial services had a long history that persisted despite legislative efforts to remedy the problem of disability discrimination.
- A primary purpose of ADA Title II was to extend existing prohibitions on discrimination to state and local government entities. Before the ADA was enacted, the Rehabilitation Act of 1973 had prohibited some public entities from discriminating on the basis of disability. Section 504 provided that no otherwise qualified individual with a disability shall, solely by reason of her disability, be excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity. This protection, however, was limited to public entities that received federal financial assistance. ADA Title II requires that services, programs, and activities of public entities be accessible to people with disabilities, regardless of whether the entity receives federal financial assistance.
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Chapter 8 Title I Enforcement And Remedies 76 results (showing 5 best matches)
- An individual who perceives that she has been the subject of disability-based employment discrimination by a private entity may seek relief under Title I of the ADA. The ADA makes available, and forces the individual to use, the procedures and remedies of Title VII of the Civil Rights Act of 1964, as amended.
- Justice Stevens has noted that, in enacting the Civil Rights Act of 1991, Congress established a tiered system of remedies for a broad range of discriminatory conduct, including violations of Title VII of the Civil Rights Act of 1964 and violations of the ADA. Equitable remedies are available for disparate impact violations, compensatory damages for intentional disparate treatment, and punitive damages for intentional discrimination with malice or reckless indifference. The Civil Rights Act imposes monetary limitations on damage awards, depending on the size of the employer.
- Many states have their own analogues to the ADA and other civil rights statutes. Those states may, of course, authorize or reject arbitration of disputes under their civil rights statutes independently of what the federal government does under its statutes.
- Therefore, when an employer engages in a continuing course of unlawful conduct under the California FEHA by refusing reasonable accommodation of an employee with a disability or engaging in disability harassment, and this does not constitute a constructive discharge, the statute of limitations does not necessarily begin to run when the employee first believes that her rights may have been violated. Rather, it begins to run when the course of conduct is brought to an end or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. An employer who is confronted with an employee seeking accommodation of disability or relief from disability harassment may assert control over its legal relationship with the employee by accommodating the employee or
- What is the impact of the ADA’s arbitration section? That section reads identically to section 118 of the Civil Rights Act: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including … arbitration, is encouraged to resolve disputes arising under this chapter.” But two aspects distinguish ADA section 512 from section 118 of the Civil Rights Act. First, it was enacted before
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Chapter 10 Coverage 145 results (showing 5 best matches)
- Public transportation is especially important to people with disabilities because evidence suggests they are more reliant on public transportation than the general population. The legal and policy tensions specific to transportation issues are a microcosm of the entire Act. These issues include the mainstreaming of existing transportation to accommodate people with disabilities versus paratransit (transportation services usually performed by vans provided separately from mass transit’s normal operations), and whether there should be a “threshold” or “necessary” level of spending on mass transportation options for people with disabilities.
- Voting is another frequent area of ADA Title II litigation, as discussed earlier in § 9.3(B). Commentators and litigants have suggested Title II’s nondiscrimination provisions give individuals with disabilities a protected right to secret and independent voting commensurate with other voters. There are several potential regulatory sources for such an argument. Public entities, for example, are required to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the entity can demonstrate that making the modifications would fundamentally alter the nature of the service program, or activity.”
- The 2010 revision to the regulations offers clarification on the use of wheelchairs and other power-driven mobility devices under Title II. A wheelchair is defined as “a manually operated or power-driven device designed primarily for use by an individual with a mobility disability.” Individuals with disabilities must be permitted to use wheelchairs in areas open to public pedestrian traffic. Other power-driven mobility devices are “any mobility device powered by batteries, fuel, or other engines that is used by individuals with mobility disabilities for the purpose of locomotion, whether or not it was designed primarily for use for individuals with mobility disabilities.” Title II entities must make reasonable modifications in their policies, practices, and procedures to permit individuals with mobility devices to use them, unless the entity can demonstrate they cannot be operated in accordance with legitimate safety requirements.
- Regarding polling place access, the Act provides funds to states and units of local governments to “mak[e] polling places, including the path of travel, entrances, exits, and voting areas of each polling facility, accessible to individuals with disabilities, including the blind and visually impaired, in a manner that provides the same opportunities for access and participation (including privacy and independence) as for other voters.” The Act’s provisions regarding secret and independent voting are more absolute. It states that voting systems shall “be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.” For the first time, federal legislation offered a federal guarantee of a secret and independent right to vote for people with disabilities.
- Ivy Brown, In her Individual Capacity and as Representative of the Certified Class
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Chapter 5 Title I 74 results (showing 5 best matches)
- Some courts have found Title I generally does not require an employer to ensure that insurance benefits treat people with disabilities equally. The issue whether Title I reaches insurance benefit plans has arisen primarily in the context of long-term disability insurance policies that cap the coverage for mental health conditions, but not physical disabilities. Title I generally does not require employers to alter their insurance benefit plans for employees working part-time as an accommodation to their disability. An employer may provide health benefits only to full-time workers, even if this requirement results in a reduction in benefits for workers with disabilities who are accommodated with part-time schedules.
- A disability does not immunize an employee from behavior and performance-based discipline, as long as the discipline is applied uniformly to employees without disabilities. An employer with no knowledge of an employee’s disability may apply its usual behavior, performance, and discipline standards, provided the workplace conduct standard is job-related and consistent with business necessity.
- In contrast, federal employers are subject to the employment disability discrimination provisions of Section 501 of the Rehabilitation Act. A federal employee has a right to bring an action against the head of a federal agency for non-affirmative action employment discrimination, and for “discriminat[ion] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The liability standards and remedies under Section 501 are generally the same as those in ADA claims.
- Under Section 503 of the Rehabilitation Act, federal contractors receiving more than $10,000 to perform a federal contract must not discriminate against an employee or applicant because of any physical or mental disability in a position for which the employee or applicant for employment is qualified. Federal contractors also must take affirmative steps to employ and treat qualified individuals with disabilities, without discriminating based on their physical or mental disability. As mentioned earlier, in 2013 the Department of Labor published rules for Section 503, including the goal that federal contractors employ up to seven percent qualified people with disabilities for each job group in the contractor’s workforce or for the contractor’s entire workforce. Most courts to consider the issue have held that there is no private right of action to enforce Section 503, which instead is enforced through an administrative process with the Department of Labor.
- Confusion often arises about how courts should treat an individual who is a shareholder or director of a professional corporation. Are these individuals “employees” for the purposes of the statute? In the past, the Courts of Appeals had split on this issue. Some circuits had focused on “economic realities,” such as management, control, and ownership, and reasoned that shareholders and directors are more akin to partners than to employees. Other courts had held differently, suggesting the use of a corporate form, including a professional corporation, “precludes any examination designed to determine whether the entity is in fact a partnership.” In nonetheless classifying shareholders, directors, and partners as employees, these courts had reasoned that allowing corporations to evade civil rights laws by classifying workers as “partners” or “directors” is unfair.
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Chapter 6 Examinations And Inquiries 51 results (showing 5 best matches)
- Employers are not permitted to engage in two types of behavior at the pre-offer stage. First, they cannot ask disability-related questions, whether directly (“Do you have a disability?”) or indirectly (“Have you ever taken the medication ABC?”). However, an employer may ask questions to which there are many possible answers, only some of which are disability-related (“Do you have an arrest or conviction record?” or “Can you meet our attendance policy?”).
- Although some courts have concluded individuals without disabilities may not bring claims for unlawful medical examinations or inquiries, the majority have come out the other way. These courts recognize the statute expressly uses different terms in different sections. Based on this, and to give effect to the policies underlying the ADA, these courts have held individuals without disabilities may bring claims for unlawful medical examinations or inquiries.
- Nonetheless, when an employer does not allow a qualified employee with an actual disability to return to work after an injury, or bid on other open positions, until she is “100% healed,” the Ninth and Seventh Circuits have held such a policy to be a per se violation of ADA Title I. This is because “100% healed” or “fully healed” return-to-work policies discriminate against qualified individuals with disabilities by permitting an employer “to substitute a determination of whether a qualified individual is ‘100% healed’ from their injury” for the ADA’s case-by-case and individualized assessment of whether the qualified individual is able to perform the essential job functions, with or without accommodation.
- There are two situations in which an applicant may have a “known disability”: if the applicant has an obvious disability, and if the applicant has voluntarily disclosed a hidden disability. An applicant may also reveal the possibility of a disability by voluntarily disclosing to a potential employer the need for a reasonable accommodation to perform a job. Any one of these events broadens the range of permissible questions that an employer may ask.
- The courts have applied these principles in a variety of cases. One court granted summary judgment against an employer with a sick leave policy that required an employee returning to work after a leave of any duration to present a doctor’s certificate with a diagnosis. The inquiry was prohibited because it might reveal a disability and was too broad to be justified by business necessity.
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Chapter 4 Qualified Individuals 24 results (showing 5 best matches)
- Can an individual with a disability be “estopped” from claiming she is qualified if she has made contradictory statements about her capabilities? Judicial estoppel is an equitable doctrine (remedy) in civil law with which a court may provide relief to a party to a lawsuit. It is meant to “safeguard courts from misuse by litigants who attempt to change positions in the expediency of the moment.”
- may be explained by the history of the two laws. The Social Security Administration’s SSDI program and the ADA each were implemented to help individuals with disabilities in different ways. SSDI provides monetary benefits to insured individuals with disabilities who show an “inability to engage in any substantial gainful activity by reason of any … physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” The SSDI impairment must be of such severity that the individual is not only unable to do previous work, but also cannot engage in other kinds of substantial gainful work that exist in the national economy. The ADA, by contrast, is primarily an antidiscrimination law guaranteeing individuals equal opportunity. It prohibits covered employers from discriminating against a qualified individual with a disability who can perform the essential job functions, including with...
- , the nursing program case discussed earlier in §§ 1.4(C), 2.3, and 3.4, the Supreme Court explored the balance between qualification and modification of eligibility standards under Section 504 of the Rehabilitation Act. The plaintiff, Davis, argued she did not intend to practice all the positions available to a registered nurse and therefore the nursing degree program could reasonably be altered to accommodate her career interests. This same argument has been made by medical students with disabilities, such as by blind medical students intending to practice psychiatry and requesting exemption from medical school surgery requirements. The Court rejected this argument, holding that the school had the right to define the meaning of its degree program broadly. Nonetheless, the constant advances in technology in the forty years since ...are available to people with disabilities. All types of schools may well be advised not to rely on outdated assumptions that may prevent otherwise...
- For many services, programs, and activities that public entities offer, the only “essential eligibility requirement” is a desire to participate. In the City had stopped offering several recreational programs, including programs that previously had been structured for people with disabilities. In considering whether the plaintiffs, who were individuals with disabilities and associations of parents and volunteers, were “qualified individuals with disabilities,” the District Court held that the only essential eligibility requirement of a City’s recreational program is a request for benefits of the program. The Title II Technical Assistance Manual issued by the DOJ recognizes that oftentimes this will be the case. Thus, the essential eligibility requirements for participation in some activities covered by the law may be minimal. For instance, most public entities provide information about their operations as a public service to anyone who requests it, and the only eligibility...
- , the Fifth Circuit had reasoned that claims under SSDI and the ADA would create directly conflicting propositions, namely, “I am too disabled to work” and “I am not too disabled to work.” When the case reached it, however, the Supreme Court held that the two claims do not inherently conflict, and that there are situations in which an SSDI claim and an ADA claim may comfortably coexist. Specifically, the ADA defines a “qualified individual” to include a person with a disability who can perform essential job functions with reasonable accommodation, such as job restructuring, part-time or modified work schedules, reassignment to a vacant position, modification of equipment or devices, modifications of examinations and training materials or policies, and the provision
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Table Of Cases 16 results (showing 5 best matches)
- Disability Rights N.Y. v. New York, 916 F.3d 129 (2d Cir. 2019), 375
- Miami Univ. v. Ohio Civil Rights Comm’n, 133 Ohio App. 3d 28 (1999), 351
- American Ass’n of People with Disabilities v. Harris, 647 F.3d 1093 (11th Cir. 2011), 186, 363
- American Ass’n of People with Disabilities v. Shelley, 324 F. Supp. 2d 1120 (C.D. Cal. 2004), 363
- Colorado Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354 (D. Colo. 1999), 354
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Editorial Board 8 results (showing 5 best matches)
- William B. Graham Distinguished Service Professor of Law and Former Dean of the Law School
- Sterling Professor of International Law and Former Dean of the Law School
- Dean and the Sol & Lillian Goldman Professor of Law
- Bonnie and Richard Reiss Professor of Constitutional Law
- Professor of Law and Affiliated Faculty
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Dedication 2 results
Copyright Page 2 results
- Concepts and Insights Series
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: July 9th, 2020
- ISBN: 9781684672271
- Subject: Disability Law
- Series: Concepts and Insights
- Type: Hornbook Treatises
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Description:
Disability Law and Policy provides an overview of the major themes and insights in disability law. It is also a compelling compendium of stories about how our legal system has responded to the needs of impacted individuals. Peter Blanck is University Professor & Chairman of the Burton Blatt Institute at Syracuse University.
The year 2020 marks the thirtieth anniversary of the Americans with Disabilities Act. During the past three decades, disability law and policy, including the law of the ADA itself, have evolved dramatically in the United States and internationally. Walls of inaccessibility, exclusion, segregation, stigma, and discrimination have been torn down, often brick-by-brick. But the work continues, many times led by advocates who have never known a world without the ADA and are now building on the efforts of those who came before them.
Lex Frieden, former Chairperson of the National Council on Disability, writes in the book’s Foreword: “In 1967, I survived a head-on car crash. When I woke up, I was paralyzed from the shoulders down. . . . My story is one of many in the modern disability rights movement. In Disability Law and Policy, Peter Blanck retells my story, and the personal experiences of many others living with disabilities, in a master tour of the area. Peter is a world-renowned teacher, researcher, lawyer, and advocate. He has been central to the modern sea change in disability civil rights . . . Disability Law and Policy should be read by all of us—people with the lived experience of disability and their advocates, parents, family members, and friends.”
