Friday, July 23, 2010

Barry on Toward Universalism: What the ADA Amendments Act of 2008 Can and Can’t Do for Disability Rights

Kevinbarry Kevin Barry (Quinnipiac Law) has posted on SSRN his forthcoming article in the Berkeley Journal of Employment and Labor Law: Toward Universalism: What the ADA Amendments Act of 2008 Can and Can’t Do for Disability Rights,

Here is the abstract:    

The social model of disability teaches that it is society’s treatment of impairments, not the impairments themselves, which limit people. But this model permits two different approaches to civil rights coverage: protect only some (the “minority group” approach) and protect all (the “universal” approach). While some scholars suggest that the ADA’s protected class of people with “disabilities” constituted an abandonment of the universal approach to coverage, this Article argues that the ADA’s three-pronged definition of “disability” embodied a tension between the minority group approach (in its first and second prongs) and the universal approach (in its “regarded as” prong). Although the minority group approach ultimately won out in the courts, that victory was not the result of a deliberate decision on the part of disability rights advocates to subordinate the universal approach.

The ADA Amendments Act of 2008 – the product of negotiations between the business community and disability rights advocates – resolves this tension and brings coherence to the ADA’s definition of disability by providing (nearly) universal nondiscrimination protection under the “regarded as” prong, and by extending reasonable accommodations under the first and second prongs to a broader but not unlimited group of people whose impairments are stigmatized.

The resolution of this tension matters for the ADA and for disability rights more generally. The new “regarded as” prong represents a bold step forward for the social model of disability by acknowledging that any one of us may be subjected to discrimination based on an impairment and, for that reason, (nearly) all of us should be protected. Likewise, the ADAAA greatly dilutes the limitation required under the first and second prongs and limits its relevance to reasonable accommodations only, thereby elaborating on what it means to be stigmatized, and ensuring reasonable accommodations to those who are.

The ADAAA is not the cure-all that many disability rights advocates had hoped for. But by reorienting our conception of “disability,” the ADAAA changes how we think about ourselves, and, ultimately, how we treat – and ought to treat – each other.

This is an interesting and insightful article, partly because Kevin had the privilege of working on the ADAAA legislation as a clinical teaching fellow for Chai Feldblum in Georgetown Law’s Federal Legislation Clinic. I have read the piece and believe it offers original insights on how the newly amended ADA could make the disability law more responsive for disabled workers.


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