Think Again

While federal disability legislation has promised broad protections against discrimination and meaningful mandates to accommodate those with disabilities, real-world application of disability law has largely failed to spur lasting, wide-ranging change. Could a more inclusive way of thinking about those with disabilities, and about the benefits associated with efforts to integrate people with disabilities into society, provide a better way forward? 

By Anna Louie Sussman

Spring 2012

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In the history of civil rights struggles, gourmet food has never been much of a galvanizing issue. But this past September, Manhattan federal prosecutor Preet Bharara ’93 announced he would be inspecting New York City’s 50 most popular restaurants, as rated by the Zagat guide, for compliance with the Americans with Disabilities Act of 1990 (ADA). “[N]o one should be unfairly deprived of the opportunity to enjoy the city’s world-class dining offerings,” Bharara said at the time, “and we will take all reasonable legal steps to make sure they are not.”

His efforts, which followed on the success of a similar 2005 initiative directed at hotels, illustrate the uneven progress made by disability rights advocates in the more than two decades since passage of the ADA—which prohibits discrimination against disabled individuals throughout the private sector. While the gourmands among us might consider access to New York’s finest restaurants as a right no one should be denied, other, more basic rights—such as freedom from housing discrimination, or the right to reasonable accommodations in the workplace—have proved harder to come by.

Still, Professor Elizabeth F. Emens is hopeful that the publicity around restaurant accessibility might signal a positive change in attitudes about people with disabilities. “The New York Times’ coverage of restaurants now addresses disability,” she notes, citing a 2007 Times story by then restaurant critic Frank Bruni in which he wrote about visiting four upscale New York restaurants with top Times editor Jill Abramson, who was temporarily in a wheelchair. Although websites about disability issues are filled with similar stories, as Emens points out, “When an anecdote is in The New York Times, suddenly it’s news.” The article, though, also highlighted in a very real way the wide berth between legal compliance and genuine accessibility. In so doing, it illustrated how much of the ADA’s promise of change—to the built environment and to attitudes toward disability—has yet to be delivered. 
 

Elizabeth Emens became fascinated by the challenges presented in disability discrimination suits while clerking for Judge Robert D. Sack ’63 in 2002.
“As I attempted to synthesize the issues in a given case for the judge, I was overwhelmed by their complexity,” she says. “The cases were just surprisingly difficult as legal matters and human matters.”

Under the ADA, those cases could have been more straightforward than the courts made them. The Act prohibits discrimination against a “disabled” individual (defined as someone who has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”), someone who has a record of such an impairment, or a person who is regarded as having such an impairment. But in the years since the ADA’s passage, its promise of protection from discrimination on the basis of disability has been extended to a scant few. Compared to those filing other categories of civil rights suits, plaintiffs in disability cases have notoriously low win rates. One analysis of cases from 2008 by the American Bar Association put the figure at 2.2 percent. In another analysis of employment discrimination decisions by federal district courts between 1998 and 2006, plaintiffs in ADA cases had an average win rate of 9.12 percent—representing the only type of federal civil rights cases stuck in single digits.

Like the civil rights legislation that preceded it, the ADA could not, on its own, legislate away ignorance, Emens says. Even as the interdisciplinary field of disability studies flourished in the academy, various myths, fears, and stereotypes about people with disabilities persisted in mainstream society. And time and again, judges hearing ADA cases were more inclined to dispute whether a plaintiff was sufficiently disabled than to rule on whether discrimination had occurred.

In 2008, Congress attempted to push back against this state of affairs by passing the Americans with Disabilities Act Amendments Act (ADAAA), which aimed to reinstate the broad scope of protection from discrimination once promised by the ADA. It expressly rejected language stemming from a 2002 Supreme Court decision that required a “demanding standard” for determining whether a plaintiff has a disability. In addition, it barred courts from considering the ameliorating effects of mitigating measures such as medication or hearing aids when evaluating whether an individual qualifies as disabled. In this way, the new law provides some hope for improvement. 

“In the past, courts would rather say, ‘Poof, you’re not disabled’ as opposed to saying, ‘You can’t do the job’ or, ‘You’re a threat to the workplace,’” says Emens. “The new amendments make it harder for them to do that.”

These are significant advancements to be sure, but Emens cautions against relying solely on the law to force social change. Unless societal attitudes toward those with disabilities evolve, she says, courts applying the ADAAA may continue to find methods for precluding recovery. Emens asserts that factors such as workplace norms, media coverage, and architectural design are critical in shaping attitudes from the bottom up. The future of disability law will depend on how effectively these and other elements work together to compel discussion about the nature and meaning of disability itself, and how societies can not only accommodate but benefit from those it has deemed disabled.
 

Historically, attitudes about people with disabilities have ranged from shame and revulsion to pity and charity. Throughout most of the 1900s, various state, private, and nonprofit actors undertook initiatives to rehabilitate and reintegrate these individuals into mainstream society. These efforts, Elizabeth Emens says, tended to rely on the “medical model” of disability, in which a disability is viewed as some sort of individual defect resulting from a medical condition—a view she refers to as “the lens of pity.” That society might adjust itself to better accommodate those with disabilities was rarely considered.

The Rehabilitation Act of 1973, which mandated “affirmative action” for people with disabilities in governmental hiring practices, marked the first legislative appearance of the “social model,” the idea that disability emerges at the interaction between the impairment and the surrounding social world. By encouraging the development of “policies and procedures” that facilitated hiring those with disabilities, the Rehabilitation Act acknowledged that the workplace, and not the individual, might require adjustment.

By recognizing in 1990 that even being “regarded as” disabled can, in effect, be disabling, the ADA also reflected the social model. But courts reviewing ADA claims began interpreting the statute in ways that put a heavy focus on the extent to which individual plaintiffs were disabled. 

This development occurred in ways that could not have been predicted based upon judicial responses to the Rehabilitation Act, which used the same definition of disability. As a result, disability cases became distinct from previous civil rights cases, in which plaintiffs “did not have to prove they have a race or a sex,” notes Emens. The end result was a clear setback for advocates of the social model of conceptualizing disability. 

“There aren’t people who sit down and write defenses of the medical model, but it’s still the prevailing model, and it’s still the view in the courts,” Emens says. “The ADA’s goal was to force employers to confront that, but by focusing on whether someone was disabled or not, courts never had to reach the question” of what changes employers had to make. 

To Columbia University professor of English and comparative literature Rachel Adams, the difference in the ADA’s language and its real-world application shows that legislation cannot be seen as a panacea. Adams has worked with Emens on several projects and directs The Future of Disability Studies, an interdisciplinary working group at Columbia consisting of scholars specializing in subjects ranging from law to medicine to anthropology to dance.

“The law can mandate various kinds of access and accommodations,” Adams says, “but it can’t dictate a change in attitude or in the deep-seated, often subconscious forms of resistance evoked by the presence of disabled bodies.”

While the 2008 ADAAA attempted to bypass these prejudices by rejecting narrow court interpretations of the ADA, it also distinguished between those who are actually disabled, and thus entitled to reasonable accommodation, and those merely “regarded as” disabled, who are not. In constructing a hierarchy of plaintiffs and entitlements, the ADAAA abandons the ADA’s most radical feature: its equal treatment of those categorized under each of the three definitions of disability. Even as it welcomed more people under its umbrella, it created new divisions between them.


One hope for lasting, meaningful change in the disability realm, says Elizabeth Emens, may stem from a reassessment of the secondary impacts related to accommodation. “In analyzing the term ‘reasonable accommodation,’ courts have always talked about cost-benefit analysis without noticing when they spoke only about costs and not benefits,” she notes.

In a 2008 law review article, Emens developed the idea of third-party benefits, in which well-designed workplace environments and policies not only accommodate people with disabilities, but provide important and often-overlooked benefits to others. For example, when an employer installs a ramp for an employee in a wheelchair, her colleagues wheeling suitcases or pushing strollers also benefit. Similarly, the convenience of voice-to-text technology acquired to accommodate a hearing-impaired employee is not lost on her colleagues.

Highlighting the wide-ranging benefits of workplace accommodations instead of focusing only on the costs also reorients attitudes toward the person who required them. Rather than being seen as a burden, a person with disabilities and her needs can be viewed as the catalyst for an overall improvement in the workplace. And acknowledging that we all can benefit from well-designed interventions places everyone on an equal footing, dissolving the neat, bright line that divides “us” and “them.” In this way, says Professor Susan P. Sturm, innovative workplace policy or architectural design can, like artistic production or media coverage, help shape attitudes in a way that law on its own cannot.

“Disability law is really practiced largely within workplaces or within universities, in working out policies and practices both to accommodate and, in more innovative settings, to learn from and benefit from people with disabilities,” Sturm says. “A lot of that isn’t going to find its way into the case law, or get articulated through the case law.”

Still, individual lawyers can play a critical role in drawing the connection between law and practice, Sturm adds. As “communicators of legal norms,” they can choose to encourage clients toward innovation and inclusiveness. And efforts to spur a more nuanced view of disability might just net the type of lasting, large-scale change that legislation has struggled to achieve.  

“I think the universalizing approach to accommodation has a ‘big tent’ quality,” Emens says. “It brings people in, it reduces stigma, and it helps allow a broader group of people to see that there’s something in it for them.”

Ultimately, this advanced way of thinking about accommodation has the potential to change the narrative about disability, Emens asserts. “Most all of us are disabled in some way, or will become disabled, if we are lucky enough to live that long,” she says. “My hope is that, over time, more people will recognize that fact and begin to see the Americans with Disabilities Act as a social insurance policy for everyone.”

Anna Louie Sussman has written for The Atlantic, The New York Times, and The Wall Street Journal, among other publications.

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Illustration by Mike Ellis