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Legal Tide Has Turned Against the Disabled
By Lennard J. Davis, November 25, 2001

Most Americans react to the idea of disability with good wishes and a silent prayer to the effect that "there but for the grace of God go I." With this level of detachment, few may have noticed a disturbing and seemingly ineluctable trend in which the courts have been whittling away at the provisions of the Americans with Disabilities Act, passed with much fanfare and hoopla in 1990 under Bob Dole's stewardship, George Bush Sr.'s Imprimatur and bipartisan congressional support. Ten years later, it has been estimated that 95 per cent of the cases brought before the courts under the provisions of that act have gone against people with disabilities.

The Supreme Court has been steadily hacking away at the provisions of the ADA. Two recent cases could be the end of the effectiveness of that legislation. The first case is one in which an employer wants the right to determine whether the job that an employee may want is a danger to his or her health. If the case is decided in favor of Chevron, it will weaken the ADA case by allowing employers, not employees to decide health issues. The second case could have even more profound consequences in dismantling the ADA. In Toyota vs. Williams, the auto company argues that Congress has defined disability too broadly…

Today's Baby Boomer generation is fast heading toward disability. The World Health Organization predicts that by 2020 there will be more than 690 million people older than 65, in contrast with today's 380 million. Even without the Baby Boomers, 15 to 20 percent of people in the United States have disabilities. Add to this caregivers and family members, and about half of the population is dealing with disability. People with disabilities make up the largest physical minority in our country - too large a group to ignore, and too large a group to roll back the protections afforded to them. We have to recognize that "them" is actually "us." If employers are concerned that the protected class is too large, they may have to reconsider their position as more people become disabled.

Effects of time: Most people would be better off identifying with people with disabilities than fearing them. As you begin to notice your hearing going, your hands stiffening, your eyes in need of stronger glasses, you may well rethink what laws are being consigned to the dustbin of history. Would it be a miscarriage of justice is all of us were protected from discrimination just as all of us are protected from voter fraud and unwarranted search and seizure? It isn't necessarily bad to be disabled, but it is bad to be discriminated against, unemployed, poor and blocked by bad laws, architecture and communication. One out of five people now living near you has a disability. They are your uncles and aunts, grandmothers and sisters. Pretty soon they'll be you. We need to think twice before we disregard the trend of the courts in eviscerating disability rights. To do so, we act at our own peril.

This editorial was written by Lennard Davis, Professor of the English and Disability and Human Development Departments of the University of Illinois - Chicago.

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