Wednesday, November 30, 2005

Law Profs Yak on Reasonable Accommodation in Employment Discrimination Law

Some of you may be interested in this listserv exchange (in which I participated) reported by Paul Secunda on the Workplace Prof Blog. The big topic is how accommodation requirements fit in antidiscrimination law, a topic on which I've written at some length.


Blogger Mary K. Day-Petrano said...

Prof. Sam,

Please post the link to the listserv professor yak on reasonable accommodations.

Also, in response to your law review article link, why is it bad that the ADA is an economic intervention?

It seems to me, and this is only the perspective of an autistic, part of a group historically deprived of all economic benefits that have been shifted to all others, that ADA economic intervention is a form of re-transfer or restitution of economic wealth benefits that have wrongly been taken from certain classes of the disabled for at least two hundred years -- far too long. So what is wrong with disabled people wanting a part of what should have been theirs in the first place?

This wrongful economic wealth transfer of the last two hundred years from disabled people to those who are stronger and not suspectible to classic forms of disability discrimination really is a type of predatory action by the non-disabled population, and much of it has occurred because disabled people are deprived of reasonable accommodations they need to enforce their legal rights - to fight back. To simplify, it is easy for a bully to overpower someone who is vulnerable and weak. Why do we have a problem equalizing the playing field to let the fight be a fair one?

On the other hand, one cannot say disabled people have no worth to economic activity and wealth creation, look at Thomas Jefferson (autistic) and Albert Einstein (autistic or aspergers).

Even in a capitalistic society, it seems to me compliance with the ADA's reasonable accommodation mandate is a cost effective way to enable disabled people to not only pay their way but increase the Nation's productivity and gross domentic product -- in other words, ADA reasonable accommodations economic intervention is a form of requiring long-term economic investment, rather than shutting all disabled people out of the economy to benefit short-term on paper bottom line profitiability at the expense of long-term economic devastation to the economy that renders the disabled a sub-human class. How is this is so different than Congress passing legislation to require companies to pay the pensions of their employees instead of enhancing short-term paper profits by dumping pension bailouts on the federal government? Really, reasonable accommodations require capitalism to take personal responsibility.

While all disabled people are different, certain classes of the disabled have been particularly victimized by the majority non-disabled wealth transfer. Assistive technology users, for example.

Maybe some people do not think about it, but if a person needs an assistive device to fill out forms to apply for benefits, jobs, bar admission, take examinations, access the courts (e.g. PACER) etc., and reasonable accommodations are not required for this, it is, and I can speak for autistics like myself, like a world where there are curbs and no wheelchair ramps to wheelchair users. There is no access.

I can give examples of economic opportunities that are blanket denied to the disabled: Florida and California Bar Applications and standardized bar examinations are inaccessible to voice-recognition Speech-To-Text devices -- disabled people who have completed law school but use these devices are shut out of becoming lawyers, which means they are also not among the population of judges. Without peer representation, who can understand or remedy their plight? How is this different than trying an African American by an all white jury in the 1950s?

Voice-recognition Speech-To-Text users also cannot acccess Social Security disability benefits forms or the application process, cannot access FEMA disaster assistance, and, here's a good one, cannot even access the United States Supreme Court's web site or job applications to compete, for example, to be a Supreme Court fellow. They are all inaccessible to voice-recognition Speech-To-Text devices. A disabled Fellow assigned, say, to Federal Court rulemaking committees would bring a perspective of accessibility to the table that is not there now.

Some severely disabled people like myself are even completely left unable to survive -- no job opportunities, no disability benefit accessibility, no voting machine access, and no way to obtain acccess to or peer representation in State and Federal Courts even at the Highest Supreme Court level. We cannot choose our legislators, our governors or president, and cannot avail ourselves of judicial remedy. And when we invoke the ADA, we face instant hostility and retaliation for being "different."

When non-disabled people complain about the ADA's reasonable accommodations mandate, I have an autistic question for them -- can a class of people simply be excluded from every part of a Republican government and all opportunities of society just because they are disabled and have no access?

I am not your typical uneducated disabled person, as I passed the California Bar Examination "with" necessary reasonable accommodations. Yet, I have simultaneously been excluded from legal employment opportunities in Florida and access to Florida bar admission because of the belief that it is ok to exclude someone who can only manually type by keyboarding 1 hour or less by not enforcing the corresponding duty to reasonably accommodate with voice-recognition Speech-To-Text assistive technology, or other equally effective accommodations.

The ADA IS an economic reparations statutory scheme, as one can ascertain by the fact ADA enforcement is excluded from the Unfunded Mandates Reform Act of 1995, Section 1503 (exclusions) -- and the ADA expressly requires the States to guarantee "independent living" and "economic self-sufficiency." 42 U.C.S. Section 12101(a)(8).

It is my disabled autistic opinion that those who do not like the ADA and who complain about reasonable accommodations being some sort of special preference, when in fact such accommodations simply provide equality of opportunity and meaningful access available to all others, are simply attempting to maintain two hundred years of predatory economic advantage by which they have exploited weaker disabled people in the competition to edge them out of the available opportunities.

In any event, your law review article is quite interesting, and that is a compliment from a disability civil rights fighter who has intensively studied the ADA and other disability laws for many years during her decades long involvment in a Virgil Hawkins-esque bar admission and access to the courts fight over the right to reasonable accommodations assistive technology that is now Docketed in the Supreme Court, Nos. 05-7287 and 05-7771. An interesting issue is the years of inconsistent positions to which disabled people can be subjected -- too disabled/not disabled -- and whether a "record of" disability invokes res judicata and/or collateral estoppel and/or Full Faith and Credit and/or the ADA's uniformity mandate, 42 U.S.C. Section 12101(b)(1), (2).

The backdrop against which the Supreme Court Petitions have been filed is a Nov. 2, 1995 Eleventh Circuit ruling, No. 05-15248-J, allowing a related Title II ADA suit to go forward against a Florida intermediate appellate court and its officials in individual and official capacity for monetary damages for violation of the reasonable accommodations mandate, finding "not frivious" that the public entity and officials are not shielded by Eleventh Amendment, judicial, or quasi-judicial immunity for their failure to reasonably accommodate.

In sum, your blog does a great service to the disabled. I have been a long-time reader. Keep up the good work!

5:26 PM  

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