Supremes Disable, Part 2

In March, Justice Sandra Day O’Connor said the Supreme Court’s 2001-2002 term will likely be remembered as the “disabilities act term” for all the cases dealing with the civil rights law.

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against disabled persons in public and private employment, requires employers to provide a reasonable accommodation to enable them to work and guarantees equal access to government programs and services.

The Supreme Court chooses which cases it will hear and which ones it will let stand. In every disability case the court agreed to hear this term, the disabled worker had prevailed at the district court or appellate court level. The Supreme Court justices could have left well enough alone. Instead the high court fulfilled its historical mandate to act as a check on the democratic majority and to protect private contract and property.

Every disability rights case the justices reviewed they overturned the lower courts’ decisions in favor of the disabled individual.

Ella Williams (Toyota) had won the right to retain another job which accommodated her carpal tunnel syndrome, Mario Echazabal (Chevron) who has Hepatitis C had won the right to work at an oil refinery and Robert Barnett (US Airways) had won the right to a mailroom job which allowed him to continue to work with a bad back. All lost their right to a reasonable accommodation at the feet of this corporatist Supreme Court.

In Jeffrey Gorman’s case (see Part I) it was Kansas City lawyers who brought the case before the high court and the justices deemed that local government cannot be sued for punitive damages. In each of the three employment discrimination cases the loser corporations — Toyota Manufacturing of Kentucky, ChevronTexaco Corp. and US Airways — gleefully petitioned the Supreme Court to overturn the victorious workers in their quest for a reasonable accommodation on the job.

The corporations had a reason to expect victory since the Supreme Court had dealt blows to disabled workers the previous court term. Last year’s began the slaughter of the definition of “disabled” under the ADA. In what has become known as the Sutton trilogy, the Supreme Court narrowed the definition of disability (see Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertsons v. Kirkingburg) and the numbers of persons who can seek redress under the ADA.

The court ruled that impairments are not disabilities if they can be mitigated by lifestyle, by devices or by medications. The lower courts, following Sutton, now disqualify people with diabetes, heart conditions, epilepsy, cancer and “mental illness” from pursuing ADA employment discrimination claims because their impairments can be mitigated with medications.

Caught in a viscous catch 22 workers with these conditions are “too functional” to be “disabled” yet can be fired for the “nondisabling” conditions. The Supreme Court virtually de-defined disability into thin air.

As Ruth O’Brien put is, the Supreme Court “turned the ADA on its head” by giving employers “the right to discriminate” and “the freedom to decide against hiring people who had limiting impairments.” (Crippled Justice)

A glaring result of that ruling is that of a person with cerebral palsy was denied the status of “disabled” because she had a pharmacist education. Even Jeffrey Gorman, a paraplegic, was challenged by Kansas City lawyers as to whether he was disabled or not by claiming his mobility impairment was mitigated by his wheelchair.

Last year’s Supreme Court term reflected their corporate favoritism. Business interests came before the court hoping to dominate the Court’s interpretation of the ADA. With gratitude, the National Chamber of Commerce Litigation Center called the Sutton decision “an incredibly significant victory for the business community.”

Business groups filing amicus curie briefs on Sutton, Murphy and Albertson’s urged the Court to consider “the impact its decision in this case may have beyond the immediate concerns of the parties to the case.” The National Association of Manufacturers asserted that “like sexual harassment last year, disability discrimination is the major employment law issue on the Supreme Court’s docket this year. ”

In the 2001-2002Y term the justices got another chance to come to the aid of big business and de-define disability in the Toyota Manufacturing of Kentucky, Inc. v Williams case. The justices ruled that Ella Williams, although impaired, was not a qualified individual with a disability under the ADA because carpal tunnel syndrome did not “substantially limit” Williams in any major life activity since Williams could “still brush her teeth, wash her face, bathe…”!

These were actual examples the court gave. The justices threw out work as a “major life activity” a prerequisite for ADA coverage! This meant that in the future a person should no longer be considered disabled merely because one could no longer perform their job.

In its amicus brief to the court the U.S. Chamber of Commerce and the American Trucking Association called the Toyota decision “keeping the lid on ADA litigation.” The Equal Employment Advisory Council (a nonprofit association made up of more than 315 major companies) joined the amicus. Repetitive motion injuries accounted for more than a third of the 1.7 million workplace injuries reported in 1999 (BLS) but these workers have little to no chance now to use the ADA to demand their employers accommodate them by placing them in another job that they can perform.

Robert Barnett had secured a vacant job in US Airways mailroom after back problems caused him left him unable to handle cargo. Later when two employees with seniority decided they wanted to transfer to the mailroom, Barnett was bumped from his job and sued US Airways under the ADA.

When congress enacted the ADA, it recognized that the traditional civil rights model would not serve to provide equal opportunities for disabled people in the labor force. The Disability Rights Movement articulated the need for accommodations in the workplace and Congress determined that the provision of a “reasonable accommodation” was a necessary component of civil rights for disabled persons in order they might be integrated into mainstream employment.

Congress had included “reassignment to a vacant position” on its list of what was meant by a “reasonable accommodation” but Justice Scalia challenged “What in the statute shows you can destroy the legitimate expectations of another employee?” (US Airways v Barnett)

Attorney Claudia Center argued for Barnett that no one risked losing a job in this case. Indeed the other employees claiming seniority already had jobs while Barnett was faced with the possibility of not having one at all. Is it “justice” to economically destroy one employee so that others can move up the corporate ladder?

Ruling against the Ninth Circuit Appeals Court and Barnett and for US Airways, the Supreme Court held that employers can use a company (not union) seniority system to avoid accommodating disabled employees. By doing so the court disallowed reasonable accommodation to challenge the social position of management.

In perhaps the most damaging decision of all, Mario Echazabal (Chevron USA Inc. v Echazabal) had worked successfully for some twenty years as a contract employee at a Chevron plant in Texas. However when he sought a full-time job with Chevron, its medical evaluation determined that working at an oil refinery was too dangerous for Echazabal because he had Hepatitis C.

Echazabal’s own physician had placed no limits on his work and Chevron had been fully apprised of Echazabal’s health condition during all those years he worked as an independent agent. But Chevron wasn’t about to give him a job which would have meant full benefits and perhaps extra insurance costs. Instead it claimed that working at Chevron was harmful to Echazabal’s health and used the defense of “threat to self.”

Rarely has the Supreme Court deferred to an Equal Employment Opportunity Commission (EEOC) ruling to determine the outcome of a case. In this instance the court did rely on an unfortunate EEOC regulation favoring employers which expanded their ADA defenses to include “threat to self” which was not in the ADA. The ADA had only named “threat to others” as a defense available to employers.

Is it not harmful to every human body to work in a chemical-laden environment? Why should one body be denied the right to boldly be exploited and slowly killed like everybody else?

The National Council on Disability damned the court’s decision as “an impermissible act of paternalism.” Marca Bristo stated the Supreme Court’s decision endorsed “the assumption that people with disabilities are not competent to make informed, wise, or safe life choices” which is “the most long standing and insidious aspect” of the discrimination that is banned by the ADA.

The U.S. Chamber of Commerce called the Chevron decision “a major victory for the business community.” And so it was. It may grow bigger.

Employers are keenly interested in eliminating certain individuals from employment opportunities based on their genetic make up. Michael Kinsley, now retired editor of Slate, suggested that genetic tests should eventually be used as qualifications for employment (April 2000).

Kinsley resigned in February as Slate’s editor some say due to Parkinson’s Disease. Under his own genetic employment directive, Kinsley likely would have been discriminated against in employment. He could have been cut out of the game long before he established himself worthy of editorship anywhere.

How tilted towards business was the court? The justices voted 9-0 against Jeffrey Gorman. It voted against Ella Williams and for Toyota in another 9-0 vote and again against Mario Echazabal and for Chevron in a 9-0 vote. The justice’s vote against Robert Barnett was 5-4 split in favor of US Airways. Two conservatives (Scalia and Thomas) and two “liberals” (Ginsburg and Souter) dissented.

Clinton’s two “liberal” appointees Stephen Breyer and Ruth Ginsburg are resolute corporatists. Author Michael Parenti notes that Ginsburg, when serving on a lower federal court, had voted more often with the conservatives than the liberals and she has continued to do so on the Supreme Court. (Democracy for the Few). Breyer has been a strong supporter of big business.

As Ralph Nader put it Breyer was “hostile to regulatory law enforcement” and that Clinton had thereby “locked the court into an anticonsumer, antiworker, antienvironmental mode.” (U.S. News & World Report, May 1994) He was proved correct.

Is there any doubt that we can now add antidisability mode to the laundry list?

The ADA and equal opportunity is a nonsolution for a capitalist society wherein the disabled workers and would-be workers, by definition, do not have the social or political power to realize their economic wants. Power lies at production, with the owners of capital and the Supreme Court is one manifestation of that power.

Productive capital is privately owned and owners are not forced to make capital available for the employment of the labor of others. Denial of access, therefore, is an important property right of capitalists to which workers do not have an equal legal rebuttal since there is no “right to a job.” The failure of liberalism forces the need for a new discourse of liberation. We need a radically different approach. Disability, being a reflection of social class – in this instance, proletariats shoved out of the labor force – presents an opening to force a broader discussion about the legitimacy of the organization of work and or our economy.

We cannot ignore private ownership of the social economy. There are no “equal rights” when the most important economic decisions about investment, choice of technology, work processes, and the organization of work itself are in the hands of a tiny elite of corporate owners and policy makers.

Nor can economic (or any other) democracy be realized when this elite can effectively block progressive public policies by threatening or carrying out disinvestment from the progressive jurisdiction as has happened in the conservative US courts with the ADA employment provisions.

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