Posted on Mon, Jul. 25, 2005

Mary Johnson's op-ed in Philadelphia Inquirer 

A long way yet to go
Judges and others still don't grasp that the 15-year-old Americans With Disabilities Act is about rights, not benefits.

By Mary Johnson
A long way yet to go
Judges and others still don't grasp that the 15-year-old Americans With Disabilities Act is about rights, not benefits.

In the 15 years since its signing this month, the Americans With Disabilities Act's philosophical underpinnings have never really entered the national consciousness.
Many who hold that racial minorities, women and gays still confront a discriminatory society nonetheless believe that disabled people face essentially private medical problems rather than discrimination.
People seem to feel that the concept of rights is the wrong lens through which to view the disability situation.
The ADA is based on a sociopolitical concept of disability that people don't understand. It was conceived as a civil rights law, but people don't view it as one. Almost all legislation for the disabled in the past has been benefits legislation. Judges say the ADA isn't well-constructed as a benefits law. That's true, because it isn't one - it's a civil rights law. But few judges have seemed to understand that - or wanted to understand the law for what it is designed to be.
Legal forays against the law during the 1990s focused mainly on finding ways to use it to determine whether people deserved to avail themselves of its protections. Were they disabled as the ADA defined it?
Intended to protect anyone against discrimination based on disability, just as the Civil Rights Act of 1964 protected anyone against discrimination based on race, religion or gender, the ADA was interpreted more and more often as a benefits law by the courts throughout the decade.
Drafted during a decade in which public good had come to be measured in economic, not moral, terms, the law as passed by Congress contained something the nation's lawmakers had not permitted in its other civil rights law - an economic loophole: Rights didn't have to be allowed if they cost too much. This ensured that most of the public discourse against disability rights would focus on cost. Much of what was said about the cost of providing accommodation and access was inflammatory and ill-reasoned. Much of it was simply incorrect.
Fifteen years later, most people still do not understand the nature of disability discrimination. And there is still very little public discussion about it.
Ella Williams took a job at the Toyota plant in Georgetown, Ky., moving her family across the state because she was so happy to have landed a job alongside other assembly-line workers whose average annual pay was $62,000. Not long after, she said, she "got lumps the size of a hen's egg" in her wrists, and her hands and fingers "got curled up like animal claws." Repetitive-stress injuries - RSI - accounted for more than one-third of the 1.7 million workplace injuries reported in 1999, according to the Bureau of Labor Statistics, and Williams was one of those statistics. "I used pneumatic tools that really vibrated, and I was always having to reach above my head," she said.
She pressed Toyota for accommodation. She got some, but later she was put back on another assembly-line job that hurt her wrists again.
After a number of legal skirmishes, Toyota eventually dismissed her. "When you get RSI, they show you the door," she said.
Ella Williams's fight against Toyota went all the way to the Supreme Court. Williams was not disabled under the ADA, the court said in 2002. The ADA was supposed to focus on the "wheelchair-bound," not "carpal tunnel syndrome or bad backs," Justice Sandra Day O'Connor had snapped from the bench the previous fall.
The ADA presents a set of new ideas for people, and most people - including judges - do not know yet what to do with those ideas. The real purpose of protection from disability discrimination is actually to provide equal opportunities for all of us - not to identify a particular group of individuals who are entitled to special treatment.
Disability is a natural part of human lives. Sooner or later, it will touch most of us. As one of the drafters of the 1990 law wrote, "The goal is not to fixate on, overreact to or engage in stereotypes about such differences, but to take them into account and allow for reasonable accommodation for individual abilities and impairments that will permit equal participation."
Thanks to the rulings of courts in the last 15 years, today we are further from that goal than ever.


Mary Johnson (editor@raggededgemagazine.com ) is the author of "Make Them Go Away: Clint Eastwood, Christopher Reeve & The Case Against Disability Rights".