The Future of Disability Rights Law

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The Future of Disability Rights Law

• Sherrie Brown
• LSJ 434
• Winter 2009

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Congress v. Supreme Court

• Former President Bush signed the ADA Amendments
  on September 25, 2008.
• Act rejects some EEOC regulations and US Supreme
  Court decisions that had changed previous
  understandings of ADA definition of disability.
• Effective January 1, 2009.

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Specific Changes include

• ADA continues to use the earlier classic
  statutory definition but changes the
  judicial/regulatory interpretations
• Mandates EEOC to revise regulations defining
  substantially limits.
• Expands the definition of major life activities
  by including 2 non-excusive listsprevious EEOC
  activities and major bodily functions.
• Mitigating Measures other than ordinary
  eyeglasses or contact lenses shall not be
  considered when determining disability.
• Impairment that is episodic or in remission is a
  disability if it would substantially limit a
  major life activity when active.
• Individuals covered only under the regarded as
  prong of the definition are not entitled to
  reasonable accommodation.
• Disability should be interpreted broadly.
• Prohibits discrimination on the basis of
  disability in Title I.

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What doesnt it do?

• Change the fundamental alteration standard or
  any of the defenses covered entities can
  employexcept perhaps qualified in Title I.
• At the end of this classdo you think the
  ADA/Rehabilitation Act, etc. have been successful
  in addressing discrimination on the basis of
  disability?

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Globalization of Disability Rights

• ISSUE
• People with disabilities have less education,
  lower income levels, and are more likely to live
  below the poverty line than the rest of the
  population in any given country, including in the
  US.
• SOLUTION?
• The human rights model of disability or the
  social model of disability or the civil rights
  model of disability.
• The disability rights debate is not so much
  about the enjoyment of specific rights as it is
  about ensuring the equal effective enjoyment of
  all human rights, without discrimination, by
  people with disabilitiesthe debate about the
  rights of the disabled is therefore connected to
  a larger debate about the place of difference in
  society.

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Should the USA sign/ratify the UN Convention?

• Does it add anything to our national laws?
• Does it serve any political or moral purpose?
• Would it change anything?

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Will we sign/ratify?

• Senator Harkins draft proposal on the floor of
  Congress in 2003resolution in support.
• Obama made campaign commitment to sign and urge
  ratification.
• Justensens concerns/criticisms
• A commitment to the new treaty merely to appear
  deferential to the needs of individuals with
  disabilities would be disastrous.
• No design standards included/adopted.
• Committee does not require participation of
  individuals with disabilities.
• Domestic law and policy is stronger than the UN
  Convention.

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What would/will/can you do?