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Write a paragraph (200 words) with a brief summary of the key points, analysis, and arguments of the reading, and any insights you might want to share (response format). Make sure to integrate at least two authors in your response.Reading(s):will be attachedEasy vocabulary. No plagiarism (studypools standards are 15\% and below). emens_disabling_attitudes_1_.pdf pardeck__j._t.___pardeck_j._a.__2007_._an_overview_ada.docx Unformatted Attachment Preview Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act Author(s): ELIZABETH F. EMENS Source: The American Journal of Comparative Law, Vol. 60, No. 1, EVOLUTIONS IN ANTIDISCRIMINATION LAW IN EUROPE AND NORTH AMERICA (WINTER 2012), pp. 205-233 Published by: Oxford University Press Stable URL: https://www.jstor.org/stable/23251954 Accessed: 24-08-2019 13:19 UTC JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms Oxford University Press is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of Comparative Law This content downloaded from 24.46.33.133 on Sat, 24 Aug 2019 13:19:41 UTC All use subject to https://about.jstor.org/terms ELIZABETH F. EMENS* Disabling Attitudes: U.S. Disability Law and the ADA Amendments Actt This is a crucial juncture for U.S. disability law. In 2008, Con gress passed the ADA Amendments Act (ADAAA), which aims reverse the courts narrowing interpretations of the Americans wi Disabilities Act of 1990. This legislative intervention provides an im portant lens through which to consider attitudes toward disability both because the success of the ADAAA will depend on judicial a tudes, and because the changes rendered by the ADAAA shed light o pervasive societal attitudes. This Essay makes three main point First, the ADAAA intervenes in the developing doctrine on disabili discrimination in important ways; in so doing, however, the ADAA carves up the definition of disability, for the first time distinguishi actual disability from regarded as disability, and expressly rese ing the right to accommodation for actual disability. This mo repudiates a strong form of the social model of disability and accede to a hierarchy of discrimination that treats the failure to accomm date as a different and lesser form of bias than direct discriminatio Second, and less prominently, the ADAAA introduces an express ba on reverse discrimination claims. Though the provision is arguab positive on a practical level, the fact that this provision could p without protest—at a time when reverse discrimination claims on th basis of sex and race have become increasingly prominent and legit mate—sets into relief the low status of disability in the popu imagination. Finally, the expanded definition of disability under t ADAAA, though useful for many potential plaintiffs, may have un ticipated attitudinal consequences. As the class of those who count disabled grows, a legal buffer is removed between nondisabled an disabled, in ways that may increase the existential anxiety of th nondisabled and result in empathy failures. A key question is how * Professor of Law, Columbia Law School. For useful conversations and com ments on earlier drafts, I thank Samuel Bagenstos, Kevin Barry, Noa Ben-Asher Daniela Caruso, Chai Feldblum, Katherine Franke, Michael Kavey, Sarah Lawsky, Michael Rembis, Charles Sabel, Michael Stein, Kimberly Walters, and participants the Evolutions in Anti-Discrimination Law in Europe and North America at Harva Law School, the Columbia Law Womens Association Workshop, and my Disabilit Law class in the Spring of 2011. For excellent research assistance, I thank Laura Mergenthal and Kimberly Walters. t DOI http://dx.doi.org/10.5131/AJCL.2011.0020 205 This content downloaded from 24.46.33.133 on Sat, 24 Aug 2019 13:19:41 UTC All use subject to https://about.jstor.org/terms 206 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 turn existential anxiety about becoming disabled into an appreciation of disability law as a social insurance policy for everyone. Efforts to improve attitudes toward disability will be critical in the coming years, as anticipated by the awareness-raising Article 8 of the UN Convention on the Rights of Persons with Disabilities. Introduction This is a fascinating and uncertain time for U.S. disability law. In 1990, Congress passed the Americans with Disabilities Act (ADA), which prohibits discrimination (including the failure to accomm date) in employment, public accommodations, and government services.1 For nearly two decades, the courts narrowed the scope of the ADAs mandate by, most obviously, interpreting disabilit under the ADA in a restrictive manner.2 In 2008, Congress pass the ADA Amendments Act (ADAAA),3 which attempts to restore broader vision of the original ADA by, in particular, expanding the statutory definition of disability.4 Courts so far have had limited o casions to interpret the revised language.5 The question now looms to whether that broader vision will survive the courts. Attitudes to disability determined the fate of the ADA in the nearly twenty years between its passage and its restoration. It was largely attitudes—specifically, the gap between societal attitudes and the laws demands—that led to the narrowing of the statute in the courts.6 The ADA had impressive bipartisan support,7 but it seems likely that those who voted for it had rather different reasons for do ing so: combine a few who understand disability as a civil rights issue, with those who see it through the lens of pity, with those eco nomically minded folks who see it as a way to get people off of welfare and onto the tax rolls, and you get the ADA.8 When the ADA reached the courts, judges interpreted it more narrowly than the advocates 1. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990). 2. See, e.g., Chai R. Feldblum, Definition of Disability Under Federal Anti-Dis crimination Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab. L. 91 (2000). 3. Americans with Disabilities Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified at 42 U.S.C. § 12101 et seq.l 4. See id. § 12101 (ADAAA findings). 5. See infra note 11 (explaining that the statute is not being applied retroactively). 6. Sam Bagenstos may be right that there are competing visions of disability rights at work in the ADA, and that they come out of tensions in the disability rights movement itself, but that kind of internal tension is not unique to disability, and so we might ask whether the fault truly lies at the movements doorstep. See Samuel Bagenstos, Law & the Contradictions of the Disability Rights Movement (2009). 7. See, e.g., Joseph Shapiro, No Pity 118-19 (1993). 8. For more sustained treatment of the ADAs passage, see, for example, id.; Sa muel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 Wm. & Mary L. Rev. 921 (2003). This content downloaded from 24.46.33.133 on Sat, 24 Aug 2019 13:19:41 UTC All use subject to https://about.jstor.org/terms 2012] U.S. DISABILITY LAW AND THE ADA AMENDMENTS ACT 207 expected.9 The law was out ahead of common sense (the common sense of society, and thus of most legislators and judges), and so courts did what they often do in such moments: they narrowed the law to better fit their common sense.10 Now we wait to see what will happen with the ADAAA. It has been more than two years since it went into effect, but courts have interpreted it not to apply retroactively.11 The challenged discrimina tion in a case therefore must have occurred since the ADAAA for its revisions to apply. So there is not yet much case law.12 What will happen as more courts interpret it? My guess is that attitudes to dis ability will largely determine the courts interpretations. That is, I suspect that courts will find new ways to narrow the statute, to the extent that a broader mandate still does not comport with their atti tudes to disability—with their common sense.13 What is that common sense about disability? That disability is unfortunate, even tragic, costly for employers and for society, to be avoided at most costs and accommodated only at a very limited cost. That disability cannot possibly have benefits (to the person with the disability or those around her), and likewise that accommodations 9. Some have argued that the advocates lack a coherent civil rights vision. Sam Bagenstos is most associated with this position, see Bagenstos, supra note 6, but other scholars have recognized the tensions in the movement, see, e.g., Michael Ashley Stein, Same Struggle, Different Difference, 153 U. Pa. L. Rev. 579, 626-29 (2004). 10. The language in the original statute arguably opened itself up to that narrow ing, which the drafters of the ADA did not recognize because the same definition in an earlier statute had not been interpreted narrowly—or received much scrutiny—from courts. See Feldblum, supra note 2, at 91-92,113; see also infra note 34 and accompa nying text (quoting the ADAs definition of disability and discussing its adoption). Note also that judges views are of course more varied and complicated than this cur sory rendering of their common sense would suggest. See, e.g., Cass R. Sunstein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Ap peals: A Preliminary Investigation, 90 Va. L. Rev., 301, 321 (2004) (finding that political party (of the appointing president) predicts notably different voting patterns forjudges deciding ADA cases, and that these differences are accentuated by the pres ence of other judges appointed by presidents of the same party). 11. See, e.g., Milholland v. Sumner County Bd. of Educ., 569 F.3d 562 (6th Cir. 2009); Becerril v. Pima County Assessors Office, 587 F.3d 1162 (9th Cir. 2009); Lytes v. DC Water and Sewer Authority, 572 F.3d 936 (D.C. Cir. 2009). See, e.g., Milholland v. Sumner County Bd. of Educ., 569 F.3d 562 (6th Cir. 2009); Becerril v. Pima County Assessors Office, 587 F.3d 1162 (9th Cir. 2009); Lytes v. DC Water and Sewer Au thority, 572 F.3d 936 (D.C. Cir. 2009). Cf. Jenkins v. National Bd. of Med. Examiners, 2009 WL 331638 (6th Cir. Feb. 11, 2009) (applying the ADAAA to a case filed before the ADAAA went into effect because the relief sought was injunctive). 12. See, e.g., Hoffman v. Carefirst of Fort Wayne, Inc., No. 1:09-CV-251, 2010 WL 3522573 (N.D. Ind. Aug. 31, 2010) (applying the ADAAA to find that a plaintiff whose renal cell carcinoma was in remission was disabled); Morgan v. Simmons, No. 09 C 6796, 2010 WL 1434317 (N.D. 111. Apr. 12, 2010) (applying the ADAAA to conclude that major bodily functions included functions of the immune system and that, on that basis, an HIV-positive plaintiff was disabled). 13. See, e.g., Matthew Diller, Judicial Backlash, the ADA, and the Civil Rights Model, 21 Berkeley J. Emp. & Lab. L. 19 (2000). This content downloaded from 24.46.33.133 on Sat, 24 Aug 2019 13:19:41 UTC All use subject to https://about.jstor.org/terms 208 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60 only benefit the individual who requests them.14 Disability is, in this view, something we should keep hoping will eventually just go away if science gets good enough.15 In the meantime, this view might say, we (the nondisabled people, or sometimes just people) should be good enough, moral enough, to do some things to help disabled peo ple, but not too much, as of course we would not want to drag down society or the economy.16 And that is just the beginning. The previous paragraph is proba bly a fair characterization of attitudes to the more popular and more visible forms of disability—relatively speaking—such as paraplegia. My use of the word popular here is only slightly sarcastic; it is no coincidence that a person in a wheelchair is the symbol for disabled parking, restrooms, and so forth. The more popular disabilities are those things (like paraplegia) that apparently affect only a discrete part of a person. Notwithstanding the spread effect—whereby out siders raise their voices at blind people or assume a wheelchair signals cognitive disability17—nondisabled people are generally more open to the idea of competence in a person with a discrete disability. Because the disability occupies one identifiable part of the body, out siders can begin to imagine how that person in a wheelchair might be very talented in the rest of his being, and therefore, from this troub ling perspective, worthwhile. When the conversation turns to people with cognitive or psychosocial (psychiatric) disabilities, however, then the whole per son is tainted, discredited (in Goffmans terms18) in a wholly different (and differently whole) way. Many people—disabled and nondisabled alike—seem not even to know that discrimination against people with psychiatric disabilities is (presumptively) illegal.19 Imagine here the lawyer-employer who says he recently hired a new secretary who had a good resume, even though she seemed crazy, because the law says he cannot discriminate on the basis of psychiatric disability, whether real or regarded-as. A friend of the employer might well respond, Are you crazy?, once again invoking that common epithet. And hid den physical disabilities are often not believed, I think, in ways that 14. See Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839 (2008). 15. Cf. Mary Johnson, Make Them Go Away: Clint Eastwood, Christopher Reeve & the Case Against Disability Rights (2003). 16. On that we, see infra text accompanying note 78. 17. See, e.g., U.S. Commn on Civil Rights, Accommodating the Spectrum of Individual Abilities 25 (1983). 18. Erving Goffman, Stigma (1963). 19. I say presumptively because there are defenses, such as someones inability to perform the essential functions of her job, or her posing a direct threat to others in the workplace—the same defenses available for physical disabilities. This content downloaded from 24.46.33.133 on Sat, 24 Aug 2019 13:19:41 UTC All use subject to https://about.jstor.org/terms 2012] U.S. DISABILITY LAW AND THE ADA AMENDMENTS ACT 209 should perhaps not surprise us, after Elaine Scarrys insights about our inability to apprehend, or even believe, anothers pain.20 Attitudes to disability therefore may lead to courts finding new ways to narrow the ADAs protections, now that the ADAAA limits the ways that they can define the protected class narrowly.21 This is therefore a crucial juncture for examining attitudes to disability and their intersection with this evolving law. This Article therefore uses the recent changes introduced by the ADAAA to make a series of points about attitudes to disability. A caveat is in order, as this is a fairly gloomy story about what is clearly an exciting legal development. The ADAAA intervenes in the developing doctrine on disability discrimination in important ways, and the passage of this ambitious legislation is all the more impres sive in a period characterized more by retrenchment than expansion of civil rights law.22 My hope is that the ADAAA will expand the scope of who is protected and who obtains accommodation, through the many legal and extralegal actors who implement the law on a daily basis.23 If the ADAAA successfully brings more people with dis abilities into the workplace, then attitudes to disability should be improved through increased contact with a wide range of people with disabilities and with reasonable accommodations.24 This Essay fo 20. See Elaine Scarry, The Body in Pain 4 (1985) (For the person whose pain it is, it is effortlessly grasped (that is, even with the most heroic effort it cannot not be grasped); while for the person outside the sufferers body, what is effortless is not grasping it (it is easy to remain wholly unaware of its existence; even with effort, one may remain in doubt about its existence or may retain the astonishing freedom of denying its existence; and, finally, if with the best effort of sustained attention one successfully apprehends it, the aversiveness of the it one apprehends will only be a shadowy fraction of the actual it). So, for the person in pain, so incontestably and unnegotiably present is it that having pain may come to be thought of as the most vibrant example of what it is to have certainty, while for the other person it is so elusive that hearing about pain may exist as the primary model of what it is to have doubt. Thus pain comes unsharably into our midst as at once that which cannot be denied and that which cannot be confirmed.). For a critique of some ways of reading Scarry, see Tobin Siebers, Disability, Pain, and the Politics of Minority Identity (un published manuscript, on file with author, Oct. 2011) (Pain does not spring from and differentiate the individual. It does not belong to one person alone. It is a social inven tion, external to people, that marks them as individual. The dominant social representation of pain in the West is the individual alone in pain .... What would it mean to conceive of pain not as an individual or personal emotion—as a feeling owned by one person—but as a socially mediated identity, as a product of social forces oper ating external to individuals?). 21. For ways courts might do this, see infra text accompanying notes 48-51. 22. See, e.g., Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 Yale L.J. 1141 (2002). 23. C.f., e.g., Susan Sturm & Howard Gadlin, Conflict Resolution and Systemic Change, 2007 J. Disp. Resol. 1 (2007); 76 Fed. Reg. 16989 (Mar. 25, 2011) (reporting, as part of the impact analysis of the ADAAA, the argument that accommodations were being provided more broadly than the court decisions required); id. at 16997-98 (recognizing the potential for attitudinal benefits, inter alia, from accommodation). 24. There is an extensive literature on the so-called contact hypothesis, the idea that working side by side in cooperative ventures can reduce animus and stereotyp This content downloaded from 24.46.33.133 on Sat, 24 Aug 2019 13:19:41 UTC All use subject to https://about.jstor.org/terms 210 THE AMERICAN JOURNAL OF comparative LAW [Vol. 60 cuses largely on attitudes in direct interaction with the statute, although the statutes effects on attitudes will also be mediated by how the statute is implemented on the ground. That process of im plementation will, however, be shaped by the statutes fate in the courts. My concern is that the persistence of negative and ignorant attitudes to disability will lead courts to undercut effective imple mentation either by defying the clear mandate of the ADAAA to broaden the scope of coverage or, more likely, by finding new ways to limit enforcement.25 It is therefore my aim to contribute to our under standing of those attitudes, by identifying a number of ways that they intersect with these recent changes to the law. From an international perspective, this is also an auspicious mo ment to focus on attitudes to disability, in the wake of President Obamas signing of the UN Convention on the Rights of Persons with Disabilities (CRPD).26 The CRPD contains an Awareness-raising article explicitly requiring states parties to promote more positive at titudes toward disability.27 Whether and how states implement this directive will depend in part on their appreciation of the crucial role attitudes play in the creation and implementation of disability law.28 At this critical juncture, this essay examines U.S. disability law to help enrich our understanding of attitudes to disability in the U.S. context and, I hope, beyond. I. Introducing the ADAAA It is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations . . . [rather than] whether an individuals ... 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