Tuesday, January 24, 2006
Although it was not my intention at all in making fun of the 8th Circuit's "Hugging as a Major Life Activity" case, the entry has spawned an entirely serious debate on the AALS employment discrimination listserv about the current deficiencies surrounding ADA jurisprudence when deciding issues of disability discrimination in employment.
With the authors' permission, what follows are some excerpts of some of the more thought-provoking comments on the current state of the ADA and how disability is determined under that law:
I agree that our current standards for determining disability are absurd, but what does turning to a stigma standard say about our view of the accommodation mandate? Don't we want employers to accommodate workers' physical limitations when they can be easily accommodated whether or not those limitations are historically stigmatized? (That is an actual question, not a rhetorical statement.) The pitfalls of an animus based standard are apparent from the new generation of race/gender claims. Perhaps we are stuck between a rock and a hard place.
- Rachel Arnow-Richman (Denver)
The problem is that disability is understood to be defined basically as a functional limitation. If it were understood to be defined in terms of conditions that are stigmatized, subject to widespread discrimination, or something similar, there wouldn't be any necessary tension between the "disability" element and the "qualified" element of the plaintiff's case.
- Sam Bagenstos (Washington Univ.)
Th[e 8th Circuit hugging] case is just a great example of why the ADA is hopeless: why should anyone have to prove something crazy like hugging decline when they can't
do a job because of tendinitis but there might be a change in the job or a
different job that they could do? If the Democrats, or their successors,
even get in power, the ADA should be overhauled, with a separate Title for
public accommodation and another for employment, etc. Then let people
prove that they can't do a job because of some physical or mental condition
but could still work with a reasonable accommodation.
- Mike Zimmer (Seton Hall)
Today the ADA is a bit extreme. It is a lot better than the law was in
1989, before the ADA was passed. There are millions of Americans who meet
the disability test in the ADA. One problem is that the best cases -- for
example, my client, a quadriplegic law graduate who was denied accommodations for the bar -- get settled, so these great cases do not result in reported decisions.
The law does need to be amended, but it is important not to realize that it is valuable for many.
- Ellen Saideman (Roger Williams)
Why should we have to show that we are sterile or unwilling to bear children with HIV infection to demonstrate that HIV is a disability? Perhaps there should be a schedule of illnesses that are characterized as disabilities. The plaintiff would have to show that he or she had the disability and that it affected his or her ability to work but that the work (or another job) could be done with a reasonable accommodation?
- Ann McGinley (UNLV)
[T]he doctrinal pressure for the plaintiff to complain of hugging decline instead of a genuine work-related limitation devalues disability claims by making the ADA look like a statute that focuses in trifles.
- Steven Kaminshine (Georgia State)
Thanks to all for their great comments and suggestions! A previous roundtable post on ADA issues from this past November can be found here.