The future of anti-discrimination efforts for the disabled should take into account pervasive and normative prejudices.
The 30th anniversary of the Disabled Americans Act (ADA), known as the “Declaration of Emancipation” for people with disabilities, could not have come at a more critical or opportune time in American history.
Questions about disability rights have assumed a dominant position in the 24-hour news cycle, even if they are not expressly marked as such. Headline after headline imply disability rights: COVID-19 health care rationing, roadside voting, natural disasters like California wildfires, ongoing legal challenges to the Affordable Care Act, deaths of disabled people from police brutality, and Harvey Weinstein’s hikers.
During this election cycle, Democratic White House candidates pushed certain disability agendas in hopes of garnering the votes of millions of people with disabilities across the country. President-elect Joseph R. Biden did indeed deliver a victory speech that made explicit reference to people with disabilities.
As the Biden to Harris transition is in full swing and legislators across the country are setting legislative agendas for 2021, three top priorities can help advance the rights of people with disabilities.
Firstly, the federal government must ensure solid enforcement of the existing disability laws by the authorities and provide the companies concerned with clear guidelines for regulation.
ADA has shifted our expectations of the built world, making ramps, curbs, and elevators the norm rather than a benevolent gesture. However, disability laws have had less success in expanding access to non-physical spaces. Program design, public services, and non-physical places of public accommodation are still highly competitive areas. For example, consider how the current pandemic has highlighted why unequal access to technology is a critical civil rights issue. However, internet accessibility issues precede the pandemic of many people with disabilities, especially those who are blind, partially sighted, deaf or hard of hearing.
Rather than asking the US Congress to introduce new laws to create a right to accessible technology – a right that already exists within the ADA – the US Department of Justice should return to the process of issuing qualitative regulations and guidelines for the application of the ADA Technology. This is a job the Justice Department almost finished with during the Obama administration. However, those efforts halted in 2017 when President Donald J. Trump issued an executive order to reduce regulation and control the costs of regulation. Guidelines in this area are long overdue and avoid unnecessary uncertainty and litigation, which at best can only lead to settlement agreements for individuals and not to necessary structural reforms.
Second, Government and regulatory officials need to consider the importance of disability outside of traditional anti-discrimination laws for the disabled.
Disability lawyer Sam Bagenstos argued convincingly in 2004 that the future of disability law requires compliance with laws on charitable services, without which people with disabilities would not be able to exercise their civil rights meaningfully. This is true 30 years after the ADA and almost two decades after Professor Bagenstos’ intervention.
Threats to the Affordable Care Act and Social Security Act put people with disabilities in medically and economically vulnerable positions with potential repercussions such as displacement, loss of custody of their children or, in some cases, death. However, emphasizing the importance of these laws is not intended to mean that these laws do not require reform. Means-tested social security rules such as the “marriage penalty” have a negative impact on those receiving social security benefits in order to get married and increase their household incomes. This punishment, in turn, leads to a wrong choice between marriage and continued receipt of necessary financial and medical assistance.
The next wave of disability rights should broaden the scope of our “civil rights laws” to include areas such as environmental justice and emergency preparedness as target areas for anti-discrimination efforts in the area of disability.
Look at the different effects of the California wildfires on people with disabilities. As reported by the state of California, people with certain mobility, communication, and sensory disabilities are two to four times more likely to die from the effects of a natural disaster.
Failure to address the energy needs of people using motorized aids resulted in Pacific Gas & Electric shutting down electricity to accommodate local weather conditions that could start fires. While this may seem like a laudable public safety initiative, Pacific Gas & Electric has not adequately addressed the needs of people with disabilities who are consumers of their services. Electricity could mean the difference between inclusion and segregation for consumers with reduced mobility, or even life and death for consumers with breathing equipment or refrigerators to house insulin and other medications.
Even advancing efforts in the area of environmental justice can have unintended consequences for people with disabilities and for people at the intersection of other marginalized identities such as race, class, gender or sexuality. For example, the recent “straw ban” in Seattle has improved environmental justice by reducing the accumulation of plastic waste. However, this initiative does not take into account how the ban on plastic straw will affect people who depend on them. Most directly, these bans prevent people with disabilities from consuming drinks in public spaces.
While this may seem like an individual inconvenience or a necessary compromise in promoting environmental protection, consider the broader normative implications of the straw ban. Those who cannot access drinks independently may have to rely on friends, co-workers, supervisors, and romantic partners to help them with drinks. Given the lack of information about disabilities in society, non-disabled people may perceive “support” or non-normative drinking as a sign of less competence, ability or desirability, leading some disabled people to avoid common practices such as business transactions and socializing in public spaces. These normative effects in turn further restrict freedom of movement and create a less inclusive society.
Finally, policymakers need to consider the importance of mandatory data collection and transparency in order to realize the express intention of Congress to change outdated attitudes towards disability in society.
As I have pointed out elsewhere, disability has a particularly complex relationship with privacy. In a forthcoming article, I argue that a strong normative preference for protecting the identity of disabilities and related information established the Disability Act, and that this core assumption has blocked the flow of information necessary to challenge existing stereotypes about disability – especially the Concept of disability as a synonym for inability. That is, we are suppressing the very information that could help address the deeply ingrained aesthetic and affective biases that undermine formal equality.
For example, under Section 503 of the Rehabilitation Act 1973, federal entrepreneurs are required to take positive action with regard to hiring employees with disabilities. The US Department of Labor, the agency responsible for the implementation and enforcement of Section 503, in response to the Freedom of Information Act’s requirement, that the number of people with disabilities hired and retained by contractors are both “proprietary information” of contractors and as such, comments and private medical data of the individual employee with a disability.
However, this is exactly the type of information required to determine Section 503 compliance. Access to data on education, transport, housing, health care and employment can provide a better understanding of disability discrimination and identify opportunities for structural reform rather than using individual housing. and highlight intersectional discrimination that may not be covered by the current anti-discrimination framework.
The current moment offers significant opportunities to take stock of federal and state disability laws and to consider what the next wave of anti-discrimination efforts should look like. One of the most valuable lessons learned over the last 30 years is the understanding that there are problems with disabilities everywhere.
Rather than interrupting disabilities or limiting discussions about disabilities to the area of anti-discrimination, we should use disabilities as a critical lens in different areas of law. In this sense, disability such as race and gender should be a diagnostic lens to better understand discrimination and construct ex ante as well as ex post legal interventions.
Jasmine E. Harris is a professor of law at the Davis School of Law, University of California.
This essay is part of a series titled Thirty Years of Americans With Disabilities Act.