December 11, 2020

The next wave of disability law

[Cross-posted from The Regulatory Review]

By Jasmine Harris

The 30th anniversary of the Americans with Disabilities Act (ADA)—called the “emancipation proclamation” for people with disabilities—could not come at a more critical and opportune time in American history.

Disability rights issues have assumed a dominant position in the 24-hour news cycle, even if not specifically labeled as such. Headline after headline implicates disability rights: COVID-19 health care rationing, curbside voting, natural disasters such as the California wildfires, ongoing legal challenges to the Affordable Care Act, the deaths of people of color with disabilities from police violence, and Harvey Weinstein’s walker.

Notably, this election cycle saw Democratic contenders for the White House advancing specific disability policy agendas in hopes of capturing the votes of millions of people with disabilities across the country. President-Elect Joseph R. Biden, in fact, delivered a victory speech that explicitly included a reference to people with disabilities.

As the Biden-Harris transition moves full speed ahead, and as lawmakers across the country establish legislative agendas for 2021, three key priorities may help advance disability rights.

First, the federal government must ensure robust agency enforcement of existing disability laws and offer clear regulatory guidance to covered entities.

The ADA has shifted our expectations for the built world, making ramps, curb cuts, and elevators the norm rather than a benevolent gesture. Disability laws, however, have enjoyed less success in expanding access to non-physical spaces. Program designs, public services, and non-physical places of public accommodation are still heavily contested areas. Consider, for example, how the current pandemic has underscored why inequitable access to technology is a critical civil rights issue. Yet questions of web accessibility predate the pandemic for many people with disabilities, especially those who are blind, low vision, or deaf or hard of hearing.

Rather than ask the U.S. Congress to introduce new legislation to create a right to accessible technology—a right that already exists within the ADA—the U.S. Department of Justice should return to the process of issuing qualitative regulations and guidance on how to apply the ADA to technology. This is a task the Justice Department nearly completed during the Obama Administration, but these efforts stalled in 2017 when President Donald J. Trump issued an executive order “reducing regulation and controlling regulatory costs.” Guidance in this area is long overdue and will avoid unnecessary uncertainty and litigation, which, at best, can only produce settlement agreements applicable to individuals rather than necessary structural reforms.

Secondgovernment and regulatory officials must consider the importance of disability outside of traditional disability antidiscrimination laws.

Disability legal scholar Sam Bagenstos persuasively argued in 2004 that the future of disability law required attention to public benefits laws, without which people with disabilities would be unable to exercise their civil rights meaningfully. This remains true 30 years after the ADA and almost two decades after Professor Bagenstos’s intervention.

Threats to the Affordable Care Act and the Social Security Act leave people with disabilities in medically and economically vulnerable positions with potential trickle-down effects such as getting evictedlosing custody of their children, or, in some cases, dying. Highlighting the importance of these laws, however, is not to suggest that these laws do not require reform. Means-tested Social Security rules such as the “marriage penalty” create a disincentive for people receiving social security benefits to marry and increase their household income. This penalty, in turn, creates a false choice between marriage and continued receipt of necessary financial and medical support.

The next wave of disability rights should expand the scope of what we think of as “civil rights laws” and consider areas such as environmental justice and emergency preparedness as target areas of disability antidiscrimination efforts.

Consider the disparate impact of the California wildfires on people with disabilities. As the state of California reported, people with certain mobility, communication, and sensory disabilities are two to four times more likely to die as a result of a natural disaster.

Failure to account for the energy needs of people with motorized assistive devices led Pacific Gas & Electric to shut off electrical power in anticipation of local weather conditions that could trigger fires. Although this might have seemed like a praiseworthy public safety initiative, Pacific Gas & Electric did not sufficiently account for the needs of people with disabilities who are consumers of their services. Electricity could mean the difference between inclusion and segregation for consumers with mobility impairments, or even life and death for those relying on breathing machines or refrigerators to house insulin and other medication.

Even progressive efforts in the environmental justice space can have unintended consequences for people with disabilities and those at the intersections of other marginalized identities such as race, class, gender, or sexuality. For example, Seattle’s recent “straw ban” has advanced environmental justice by mitigating the accumulation of plastic waste—but this initiative fails to consider how banning plastic straws will affect individuals who rely on them. Most directly, these bans prevent people with some disabilities from being consumers of beverages in public spaces.

Although this may seem to be an individual inconvenience or necessary tradeoff for promoting environmental welfare, consider the straw ban’s broader normative effects. Those who cannot access drinks independently may have to rely on friends, co-workers, supervisors, and romantic partners to assist them with beverages. Given the information deficits about disability in society, non-disabled people may now perceive “assistance” or non-normative drinking as a sign of less competence, ability, or desirability—leading some disabled people to avoid common practices such as engaging in business transactions and socializing in public spaces. These normative effects, in turn, further restrict freedom of movement and create a less inclusive society.

Finally, policymakers must consider the importance of mandatory data collection and transparency in carrying out Congress’s explicit intent to change antiquated attitudes about disability in society.

As I have argued elsewhere, disability has a particularly complicated relationship with privacy. In a forthcoming paper, I argue that a strong normative preference for protecting disability identity and related information underwrites disability law, and that this core assumption has blocked the information flow needed to challenge existing stereotypes about disability—in particular, the notion of disability as synonymous with incapacity. That is, we are suppressing the very information that could help address the deeply rooted aesthetic and affective biases that undermine formal equality.

Section 503 of the Rehabilitation Act of 1973, for example, requires federal contractors to take affirmative action with respect to hiring employees with disabilities. The U.S. Department of Labor, the agency responsible for Section 503’s implementation and enforcement, has taken the position in response to Freedom of Information Act requests that the number of people with disabilities hired and retained by contractors constitutes both “proprietary information” of the contractors as well as private medical data of the individual employee with a disability.

Yet this is precisely the type of information needed to determine compliance with Section 503. Access to data in education, transportation, housing, health care, and employment can provide a better understanding of disability discrimination, reveal possibilities for structural reform rather than individual accommodations, and highlight intersectional discrimination that may not be captured by the current antidiscrimination framework.

The current moment offers significant opportunities to take stock of federal and state disability laws and consider what the next wave of antidiscrimination efforts should look like. Among the most valuable insights from the past 30 years is an understanding that disability issues are everywhere.

Rather than silo disability or limit conversations about disability to the antidiscrimination realm, we ought to deploy disability as a critical lens across various areas of law. In this sense, disability should be a diagnostic lens, as race and gender are, to better understand discrimination and construct ex ante, as well as ex post, legal interventions.