Diversity, to no one’s surprise, means different things to different people. In addressing the concept of diversity within the legal profession, the constituencies that most often come to mind are women, racial and ethnic minorities and persons with alternate sexual orientations or gender issues. A quick look at ISBA’s list of Standing Committees and Section Councils bears this statement out.
But there is another, sometimes over-looked, group of lawyers who should be included in any discussion on diversity—namely, lawyers with disabilities.
It is often said, perhaps oxymoronically, that persons with disabilities are the largest minority within American society, representing as many as one in every six people in the country, depending on who is counting. As is the case with the U.S. population at large, there is no accurate census of how many lawyers are disabled, in one fashion or another. But one thing is certain: any lawyer can become disabled at some point in her/his life, notwithstanding the fact that circumstance of birth might prevent her/him from ever knowing what it is like to be a member of some of the other minority groups mentioned above.
Disability, then, is a topic which deserves our consideration in any forum on diversity, for both personal and professional reasons. In the last two decades, perhaps no single event has done more to place this topic in the forefront of pubic consciousness than the passage of the Americans With Disabilities Act, more familiarly known as the ADA. Blessed with a short and palindromic abbreviation, the ADA is one of those federal statutes that everybody knows about, but not everybody knows. Like ERISA, CERCLA and RCRA, the name evokes a list of the Fates or Furies from ancient mythology, recognizable to many, but known well only by liberal arts majors and crossword puzzle enthusiasts.
Enacted in 1990 and first effective in 1992, the ADA stands on the edge of its 17th in-force year as the law of this land in terms of guaranteeing and protecting the rights of individuals with disabilities with respect to employment and also ensuring physical access to places of public accommodation and government services. Many people, however, believe that the ADA is in need of serious repair or replacement, due to erosion of the law’s strength as a result of decisions by the federal courts within the last decade. Others argue that the U.S. Supreme Court has only used common sense to rein in a statute that would otherwise have driven employers and the owners of business premises into financial ruin by promoting an “[almost] everybody’s a victim” view of civil rights.
In adopting the ADA, Congress defined a “disability” as A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. The list of major life activities that the law recognizes as subject to impairment is both long and wide. Early decisions of the lower federal courts accepted the invitation of Congress to interpret the ADA broadly, occasionally straining to conclude that a claimant actually was disabled. As the cases made their way through the appeal process, a more restrictive interpretation of “disability” became the standard. This interpretation was ultimately recognized in a series of Supreme Court decisions—commonly referred to as the “Sutton Trilogy”—in which the court ruled that the limitations on a person’s major life activities must be considered in the context of the use of mitigating measures, such as eyeglasses, medication or prostheses. Consequently, many persons who use such mitigating measures to deal with their disabilities could no longer find protection under the ADA, because they were no longer “substantially limited.”
In a later case, the Supreme Court declared that a person’s disability must be determined by a strict standard, thereby substantially narrowing the gate through which claimants have to pass for relief. Furthermore, the court held that to qualify under the ADA, a disability must affect a broad range of a person’s activities, not just one or a few limited tasks. Many kinds of repetitive motion injuries, therefore, no longer meet the standard of ADA-protected disabilities.
As a result of these and other decisions, disabilities rights groups have lobbied for a legislative reversal of the Supreme Court’s actions. In 2007 a bipartisan group of legislators introduced the ADA Restoration Act, now winding its way through Congressional committee. As its title suggests, the Act proposes to restore, but not expand, the original protec- tions that Congress sought to provide to persons with disabilities. Of the three major Presidential candidates, only Mr. Obama appears to have committed already to sign the legislation, if passed.
Regardless of one’s views about the change, it is impossible to deny that the ADA is not the same law today as it was when enacted. At the same time, opportunities for many persons with disabilities have undeniably increased, even in the face of a more restrictive interpretation of the law. The twin prospects of a new President and a further declining economy will undoubtedly affect the course of efforts to restore the ADA to its original condition. Teenage years are seldom easy, even in the life of a civil rights statute.