Boarding Buses and Getting a Job: Civil Rights Missing in Action

Around the 13th anniversary of the signing of the Americans with Disabilities Act (July 26, 1990) Anthony Trocchia, President of Disabled in Action in New York, found it necessary to hold a public bus hostage for an hour in 95 degree heat by sitting in front of it. This was the 7th bus that had passed Trocchia by without stopping on that particular day.

The ADA requires public transportation systems to be accessible and in working order but New York city hall, like many municipalities across the nation, does not keep wheelchair lifts in working condition. What message does that convey? So what if Trocchia cannot get to work or any other destination.

Over a decade down the road parity is missing in action when it comes to disability civil rights.

Jeffrey Sutton, a Bush nominee recently appointed to the US Court of Appeals for the Sixth Circuit, has said disability rights are unnecessary. Sutton successfully argued before the Supreme Court (Alabama v Garrett) that employees of state governments couldn’t sue for discrimination under the ADA. Consequently, a woman who had been a state employee for 17 years wasn’t entitled to monetary compensation when the state demoted her after she was diagnosed with breast cancer.

Sutton called his argument in Garrett “a challenge to the ADA across the board.” Yet the congress did not stop Sutton’s appointment to a judgeship where he may exercise those views. The Bush right-wing ideologues being confirmed to Appeals courts (lifetime appointments) will have a long-lasting impact on civil rights.

July 14, 2003, a Wall Street Journal report read “To Save on Healthcare Costs, Firms Fire Disabled Workers.” This was reported in the same quarter where Cyprus-based PacifiCare Health Systems bragged of earnings tripling to $73 million.

In a “market failure” where insurance premiums have risen as much as 13 percent and corporations seek to increase profit levels, workers with illnesses are becoming an increasingly common casualty of the corporate drive to cut costs.

It is a truism that disabled workers are the first to be fired and the last to be hired. The WSJ story hones in on the structural dysfunction at work but doesn’t, of course, name the system.

Last July it reported, Polaroid Corporation, sent a letter to 180 disabled employees notifying them that they had been fired and their health, life and dental insurances were being terminated. Other companies like Polaroid (owned by Bank of America) are following the lead of that corporation and firing employees who are having, as in one instance, chemotherapy and “life threatening” situations. I doubt these employees would agree with Sutton protection under disability civil rights law is not necessary.

These no-longer employees may have to rely on Social Security Disability Insurance (SSDI) where in addition to a market failure they will face a US government welfare state failure as well.

SSDI could accurately be described as penalizing people who must rely on it. SSDI recipients typically get less than half of what they earned when they were working. For example, the Social Security Administration estimates that a 30-year-old earning $30,000 per year who can not work in 2003 is entitled to a monthly benefit of approximately $1054, or $12,648 per year. A 40-year-old making $40,000 per year gets a monthly benefit of about $1218, or $14,616 per year. A 40-year-old earning $50,000 per year is entitled to approximately $1435 per month, or $17,220 annually. Moreover, there is a two-year wait to get Medicare.

That is on the forced-exit end of the labor market. Entry level tells another story. What about disabled/deaf persons — who are not ill but have an impairment and who are trying to get jobs, often their first job?

There has been little to no improvement in deaf, blind, mobility impaired, or mentally disabled persons employment rates over the past decade.

Employers often refuse to hire disabled individuals who are fully qualified, graduating from the top of the class! Corporations and other businesses rob these people of their ability to make a living which they must do in order to buy the things they need to survive. Imagine if you never could get a job just because you are blind or deaf or use a wheelchair!

It is a mixed blessing to have a job in today’s service based exploitative economy but for a disabled or deaf person obtaining a job on the front end is too often impossibility with no payoff at all. These would-be workers are the truly “discouraged” workforce.

Workers with disabilities who do manage to get jobs are facing harassment and discrimination while on the job. Jeffrey Nix, a deaf employee of Home Depot in Atlanta, managed to obtain an admission from the corporation that it has a written policy of excluding deaf employees.

An EEOC investigation disclosed at least two reasonable accommodations for employee Nix but the corporation failed to show it considered or implemented accommodations. The corporation also failed to provide Nix the same opportunity and access as his co-workers.

Moreover, Attorney Tamara Rorie said Home Depot not only failed to provide reasonable accommodations by way of interpreters, closed captioning for training videos, and retaliated by repeatedly subjecting Nix to several discriminatory employment practices such as drastically reducing his hours and removing his name from the part-time schedule for months.

Nix filed a lawsuit after numerous attempts were made by the EEOC, mediation, conciliation, and by Nix to rectify the situation. The lawsuit seeks that Home Depot changes its policies and provide reasonable accommodations for its disabled/deaf employees.

Let’s hope Nix doesn’t have to face a federalist judge like Jeffrey Sutton who thinks the ADA is a violation of state’s immunity. But it doesn’t, for that matter, require a right-wing activist judge for employers to prevail in court.

A study by the American Bar Association found that employers prevailed in more than 94% of the 327 ADA 2002 employment cases decided in federal courts.

The civil rights predicament is so dire that disability activists and disability organizations have actually sought to stop cases from going to the Supreme Court because the conservative Court has beaten back our civil rights in a shameless manner. (See other ZNet commentaries by me on this topic: SC narrowing the definition of “disability,” disallowing disabled state employees from recovering damages and other squelching of the law)

In March, California activists stopped the state from proceeding with a case that would have again tested the scope of the ADA. Dr. Michael Hason sued after the state’s medical board refused to give him a license because of his clinical depression. Hason argued that the ADA required the licensing board to accommodate his disability by offering him a probationary license.

But the case had ramifications far beyond Hason’s immediate predicament. It would have jeopardized disabled people’s rights to sue states over accommodations violations like inadequate upkeep of accessible public transportation like Trocchia experiences in NYC.

In an unusual and unprecedented capitulation to disability rights activists, California Attorney General Bill Lockyer said in a letter to the Medical Board of California that it would be “truly unfortunate” for the Hason case to cause broad limits on all disabled people.

The Supremes could have used the Hason case to shield government agencies and schools from lawsuits under ADA. It may get another chance.

Tennessee activists, so far, have not been successful in keeping a similar challenge from the conservative bench. The Supreme Court has granted certiorari to another disability rights case. This fall the Supremes will hear arguments as to whether a disabled person may sue a state government or not.

You read that correctly.

Granted suing is a crapshoot for a just outcome but it is the proscribed method under a liberal rights judiciary. The ADA is a civil rights bill and the remedy for a violation is to take legal action, i.e., to sue.

The state of Tennessee is fighting George Lane, a Tennessee man who lost a leg in an auto accident in the mid-1990s. When Lane was summoned to appear in court he found the courthouse inaccessible. Lane got out of his wheelchair and crawled up two flights of stairs to appear in court as the law dictated. All this because the courthouse had no elevator and officials refused to provide other accommodations such as moving the court to the lower floor.

A second hearing was scheduled requiring Lane to be in court again. This time, however, Lane refused to take on the weight of crawling up two flights of stairs. Instead, he sent word to the judge that he would be downstairs. Lane was subsequently arrested for not appearing in court. Then Lane filed suit against the state of Tennessee for violating his civil rights.

Tennessee’s Attorney General Paul Summers will argue that the state is shielded from having to comply with the ADA by using Sutton’s strategy — the constitutional theory of “sovereign immunity,” the doctrine of states’ rights.

We cannot know what the court will decide but we know already that the judicial process will ignore that a disabled person’s rights were violated. Instead, mechanics of law will ensure that disability discrimination will not be the important matter here, rather it will be whether Lane has a right to sue or not.

The injustice is that Lane was discriminated against but that will not be the question the Court decides. The issue will be about limiting states from lawsuits. As with Garrett who also was discriminated against but ignored, the Supremes will focus on state immunity from lawsuits.

So much for parity being granted through civil rights under a liberal rights-based justice system, eh?

We know “equal opportunity” does not really exist for anyone. Unemployment is endemic to capitalism. Forcing unemployment on people is, as author Michael Yates puts it, theft by the owners of production. Years of income that would belong to the worker are denied them each year they do not work. This, in turn causes much hardship and social exclusion with many ramifications.

Demanding parity falls short of what is necessary for an economically just society to materialize but it is important to recognize some groups are sideswiped harder than others. Race, gender, ethnicity, and disability are universal factors.

At the 5th National Assembly of Employed and Unemployed Workers held in Buenos Aires (Aug. 2-3, 2003) workers did just that. The Workers Movement Commissions (28,000 people in attendance) recognized that disabled workers face undue employment hardship being the first to be fired and the last to be hired.

The Assembly approved a proposal submitted by REDI, Argentina’s Disability Rights Network, that called for no more firings of disabled persons and continued employment for any worker who becomes disabled without wage cuts. It also called for job quotas for workers with disabilities in public and private sectors. For those with no jobs, REDI demanded sufficient income to cover basic household needs and universal health care.

Last, but not least, REDI called for an accessible society – accessible housing, transportation, etc. After all, disabled persons in Argentina need to board the public bus just like Anthony Trocchia needs to in New York City.

If the courts won’t enforce disability civil rights, the people must unify in a broader struggle and demand it as members of society. Some labor organizations in the US could take a lesson from their brothers and sisters in Argentina.

Marta Russell http://www.martarussell.com/ — Marta Russell Los Angeles, CA http://www.martarussell.com/

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