THE UNIVERSITY OF ALABAMA AT BIRMINGHAM, BOARD OF TRUSTEES, and THE ALABAMA
DEPARTMENT OF YOUTH SERVICES,
Petitioners, v.
PATRICIA GARRETT and MILTON ASH,
Respondents.
On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit
____________
BRIEF OF NATIONAL EMPLOYMENT LAWYERS ASSOCIATION (NELA), NATIONAL FEDERATION OF
THE BLIND (NFB), ET AL., AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
____________
MERL H. WAYMAN Barrister Building
338 South High Street Columbus, OH 43215
(614) 469-9960
Counsel for NELA & AMERICAN DIABETES
ASSOCIATION
DANIEL F. GOLDSTEIN Counsel of Record
C. CHRISTOPHER BROWN BROWN, GOLDSTEIN
& LEVY, LLP
520 West Fayette Street Suite 300
Baltimore, MD 21201 (410) 962-1030
Counsel for NFB
(Additional Counsel listed on inside front cover)
Midwest Law Printing Company/ Photex — Chicago — (312) 321-0220
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Additional Amici Curiae and Counsel:
PAULA A. BRANTNER Senior Staff Attorney
NATIONAL EMPLOYMENT LAWYERS ASSOCIATION
600 Harrison Street Suite 535
San Francisco, CA 94107 (415) 227-4655
Counsel for NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION
DONNA R. EUBEN Staff Counsel
AMERICAN ASSOCIATION OF UNIVERSITY
PROFESSORS
1012 14 th Street, N. W. Suite 500
Washington, DC 20005 (202) 737-5900
Counsel for AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS
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TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS............................ i
TABLE OF AUTHORITIES ....................... ii
INTEREST OF AMICI CURIAE ................... 1
SUMMARY OF ARGUMENT ..................... 3
ARGUMENT ................................... 5
I. Stereotypes and Stigmatization— Barriers
to Employment of the Disabled— Exist in
the Public Sector and Violate the Equal
Protection Clause ......................... 5
II. An Extensive Record Demonstrates Public
Sector Employment Discrimination
Against the Disabled Based on Fear,
Stigma and Stereotype ................... 12
A. Persons with Cancer Histories ......... 12
B. Persons with HIV .................... 14
C. Persons with Epilepsy ................ 16
D. Persons with Mobility Impairments ..... 18
E. Persons with Diabetes ................ 22
F. Hearing Impairments ................. 23
G. Persons with Vision Impairments ....... 24
CONCLUSION ................................. 28
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TABLE OF AUTHORITIES
Cases PAGE( S)
Board of Trs. v. Human Rights Comm'n,
485 N. E. 2d 33 (Ill. App. 4th 1985) .............. 21
Board of Regents of State Colleges v. Roth,
408 U. S. 564 (1972) ........................... 3
Bothum v. Department of Trans.,
396 N. W. 2d 785 (Ct. App. Wisc. 1986) .......... 23
Burris v. City of Phoenix,
875 P. 2d 1340 (Ariz. Ct. App. 1993) ............. 12
Carr v. Fort Morgan Sch. Dist.,
4 F. Supp. 2d 989 (D. Colo. 1998) ............... 20
Chalk v. United States District Court,
840 F. 2d 701 (9th Cir. 1988) ................... 15
City of Boerne v. Flores,
521 U. S. 507 (1997) ........................... 4
City of Cleburne v. Cleburne Living Ctr.,
473 U. S. 432 (1985) ........................... 5
Cleveland Board of Education v. LeFleur,
414 U. S. 632 (1974) .......................... 26
Coleman v. Casey Bd. of Educ.,
510 F. Supp. 301 (W. D. Ky. 1980) ............ 21-22
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6
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Commonwealth v. Tinsley,
564 A. 2d 286 (Pa. Commw. 1989) ............... 22
Connecticut Institute for the Blind
v. Connecticut Commission on
Human Rights and Opportunities,
405 A. 2d 618 (1978) .......................... 26
Duran v. City of Tampa,
430 F. Supp. 75 (M. D. Fla. 1977) ............... 17
In Re El Dorado Co. Sheriff's Dept.,
1979 CAFEHC LEXIS 8
(Ca. F. E. H. C. Sept. 6, 1979) ................... 23
Garrett v. University of Alabama Bd. of Trs.,
193 F. 3d 1214 (11th Cir. 1999) .................. 1
Gurmankin v. Costanzo,
556 F. 2d 184 (3d Cir. 1977) .................... 26
Heumann v. Board of Education,
320 F. Supp. 623 (S. D. N. Y. 1970) ............... 20
Kimel v. Florida Board of Regents,
120 S. Ct. 631 (2000) .......................... 4
Malmed v. Thornburgh,
621 F. 2d 565 (3d Cir. 1980) .................... 26
Melvin v. City of W. Frankfort,
417 N. E. 2d 260 (App. Ct., 5th Dist. 1981) ...... 20-21
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iv
Pushkin v. Regents of the University of Colorado,
658 F. 2d 1372 (10th Cir. 1981) ............... 18-19
Richardson v. Purvis,
402 So. 2d 910 (Ala. 1981) ..................... 27
School Bd. of Nassau County v. Arline,
480 U. S. 273 (1987) ........................ 5, 16
Smith v. Fletcher,
393 F. Supp. 1366 (S. D. Tex. 1975)
modified, 559 F. 2d 1014 (5th Cir. 1977) ......... 19
Sutton v. United Air Lines, Inc.,
527 U. S. 471 (1999) .......................... 22
United States Constitution
U. S. CONST. amend. XIV .......................... 3
United States Statute
Randolph-Sheppard Act,
20 U. S. C. § 107 (2000) ........................... 25
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8
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Congressional Materials
Civil Rights Act of 1984: J. Hearing
on S. 2568 before the S. Subcomm.
on Educ., Arts and Humanities and
the Subcomm. on the Handicapped of
the Comm. on Labor and Human
Resources, 98th Cong. 32 (1984) .............. 17-18, 19
Civil Rights Restoration Act of
1985: J. Hearings on H. R. 700
before the H. Comm. on Educ.
and Labor and the Subcomm. on
Civil and Constitutional Rights
of the Comm. on the Judiciary,
99th Cong. 155 (1985) ................... 10-11, 17, 27
Hearing on H. R. 2273, The Americans
with Disabilities Act of 1989:
J. Hearing before the H. Subcomm. on
Employment Opportunities and Select
Educ. of the Comm. on Educ. and Labor,
101st Cong. 105 (1989) ........................ 15, 28
United States Senate
Randolph-Sheppard Act for the Blind
Amend. of 1973 Hearings on S. 2581
before the Subcomm. on the Handicapped
Labor & Public Welfare Comm.,
93d Cong. 63 (1973) ......................... 7, 25-26
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7
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vi
Rehabilitation of the Handicapped
Programs 1976: Hearings before the
Subcomm. on the Handicapped of S.
Comm. on Labor and Public Welfare,
94th Cong. 629-62 (1976) .......................... 6
Americans with Disabilities Act of 1989:
Hearing on S. 933 before the S. Comm.
on Labor and Human Resources and on
the Handicapped, 101 st Cong. 404 (1989) ........... 15
S. Rep. No. 116, 101 st Cong. 7 (1989) ............... 20
House of Representatives
Implementation of Section 504,
Rehabilitation Act of 1973:
Hearings before the H. Subcomm.
on Select Educ. of the Comm. on
Educ. and Labor, 95th Cong. 302 (1977) ....... 8, 19, 20
Oversight Hearings on the
Rehabilitation Act of 1973:
Hearings before the H. Subcomm.
on Select Educ. of the Comm. on
Educ. and Labor, 95th Cong. 308 (1978) .......... 9, 10
Employment Discrimination Against
Cancer Victims and the Handicapped:
Hearings before the H. Subcomm. on
Emply. Opportunities of the Comm.
on Educ. and Labor, H. R. 370 and
H. R. 1294, 99 th Cong. 5 (1985) ................ 12-13, 14
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Hearing on Discrimination Against
Cancer Victims and the Handicapped:
Hearing before the H. Subcomm.
on Employment Opportunities of the
Committee on Educ. and Labor,
100th Cong. 2 (1987) ......................... 13, 16
Oversight Hearing on H. R. 4498,
Americans with Disabilities Act
of 1988: Hearing before the H.
Subcomm. on Select Educ. of the
Comm. on Educ. and Labor,
100th Cong. 41 (1988) ......................... 10-11
Americans With Disabilities Act of
1989: Hearings on H. R. 2273 before
the House Comm. on the Judiciary,
101st Cong. 218 (1989) ........................... 11
Congressional Record
89 Cong. Rec. 5660 (1943) (Rep. Judd) .............. 6
89 Cong. Rec. 5664 (1943) (Rep. Troutman) ......... 6-7
105 Cong. Rec. A1006-07 (1959) (Rep. Baring) ....... 25
123 Cong. Rec. 13515 (1977) (Sen. Humphrey) ....... 12
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State Statutes & Regulations
Ala. Code 34-14-4 (1997) ......................... 16
Conn. Gen. Stat. 371 § 20-29 (1999) ................ 22
Conn. Gen. Stat. 384 § 20-202 (1999) ............... 22
Conn. Gen. Stat. 385 § 20-227 (1999) .............. 22
Conn. Gen. Stat. 386 § 20-238 (1999) ............... 22
Conn. Gen. Stat. 387 § 20-263 (1999) ............... 22
Del. Code Ann. tit. 24, § 3715 (1997) ............... 16
Idaho Admin. Code 11.11.01 (2000) ................ 17
201 Ky. Admin. Reg. 7: 02 (1994) ................... 16
702 Ky. Admin. Reg. 5: 080( 1) (1999) ............... 21
Mass. Ann. Laws ch. 112, §87L (2000) .............. 18
Miss. Code Ann. § 73-5-25( c) (1972) ................ 16
N. C. Gen. Stat. § 93-D5 (1991) .................... 16
N. D. Cent. Code § 43-04-40 (1993) ................. 16
N. D. Cent. Code § 43-33-07( d) (1993) .............. 16
N. D. Cent. Code § 43-34-03 (2000) ................. 22
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Or. Rev. Stat. § 690.075 (1989),
amended by 1999 Or. ALS 425,
1999 Or. SB 290 ................................ 16
67 Pa. Code 71.3( b)( 4) (1998) .................... 22-23
S. C. Code Ann. § 40-7-240( 3) (1986) ................ 16
Tenn. Code Ann. § 62-3-121( 3) (1997) .............. 16
Wis. Stat. § 454.15( 2)( e) (1998) .................... 16
Wyo. Stat. Ann. § 33-7-207 (Michie 1999) ........... 16
Articles
Y. Chiang, et al., Federal
Budgetary Costs of Blindness,
70-2 The Millbank Quarterly
319-340 (1992) .................................. 24
Felton & Litman, Study of Employment
of 222 Men with Spinal Cord Injury,
46 Archives of Physical Med. &
Rehab. 809 (1965) ................................ 6
Kettle & Massie, Need a Disability
Be A Handicap? 13: 2 Personnel
Mgmt 32 (1981) ................................. 16
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x
J. Kirksey, Disabled Man to Realize
Dream – to Teach, Denver Post,
Aug. 26, 1998 at B-9 ............................. 20
J. Russell, et al., Trends and
Differential Use of Assistive
Technology Devices: United States,
1994, Advance Data No. 292 (Nat'l
Ctr. for Health Statistics 1997) .................... 18
U. S. Dept. of Health and Human
Servs., Recommendations for Prevention
of HIV Transmission in Healthcare
Settings, 36 Morbidity & Mortality
Weekly Rep. 2S, 3-4 (August 21, 1987) ............. 14
Books
K. Jernigan, Blindness— Concepts
and Misconceptions, The Braille
Monitor, 76 (Aug. 1965) .......................... 24
Maureen J. Harris, Summary, in
DIABETES IN AMERICA 1 (National
Institutes of Health, NIH Publication
No. 95-1468 2 nd ed., 1995) ........................ 22
Marc Maurer, Children and Chain
Saws, in To Touch the Untouchable
Dream (K. Jernigan ed. 1993) .................... 25
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xi
Marc Maurer, Reflecting the Flame
(1999) ......................................... 25
B. Pierce, Climb Every Mountain,
in Making Hay, (K. Jernigan ed. 1993) ............. 25
Miscellaneous
American Ass'n of University Professors,
On Discrimination (1995 ed.) ...................... 3
Centers for Disease Control
and Prevention, HIV and Its
Transmission (July 1999) ........................ 14
Cornell University, Implementing
the Americans With Disabilities
Act: Working Effectively with
Persons who are Deaf or Hard
of Hearing (April 1994) .......................... 23
D. Finkelstein, Blindness and
Disorders of the Eye (Nat'l
Federation of the Blind 1989) .................. 27-28
Disability Rights Mandates: Federal
and State Compliance with Employment
Protections and Architectural Barrier
Removal (April 1989) ............................ 17
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xii
S. Harlan & P. Robert, Disability
in Work Organizations: Barriers
to Employment Opportunity,
Univ. at Albany, N. Y. (November 1995) ............. 8
National Institute of Mental Health,
Nationwide Survey Finds Continuing
Stigma and Misinformation about AIDS
(July 1, 1998) .................................. 15
U. S. Census Bureau, Survey of
Income and Program Participation
(SIPP) 1994-1995 ............................... 18
U. S. Dept. of Health and Human Servs.,
Office of Civil Rights, OCR Significant
Cases, Americans with Disabilities Act:
TANF (U. S. Dept. of Health and Human
Services) (March 2000) ........................... 9
U. S. Dept. of Justice, Civil Rights
Division, Enforcing the ADA:
A Press Report From the Dep't of
Justice for the Mid-Atlantic Region
(June 27, 2000) ................................. 23
Urban Institute, Report of
Comprehensive Needs Study (1975) ................. 6
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1 Pursuant to Supreme Court Rule 37.6, amici state that no
person or entity other than the amici curiae, their members, and their undersigned counsel made a monetary contribution
to the preparation or submission of this brief. No attorney for any party authored this brief in whole or in part. Written
consent to the filing of this brief has been obtained from the parties in accordance with Supreme Court Rule 37.3( a). Copies
of the consent letters have been filed with the Clerk.
INTEREST OF AMICI CURIAE 1
This brief is submitted by the National Employment Lawyers Association (NELA), the National Federation
of the Blind (NFB), the American Diabetes Association and the American Association of University Professors
(AAUP).
NELA, a voluntary membership organization exceeding
3,000 attorneys, is the country's only professional member-ship organization of lawyers who regularly represent
employees in labor, employment and civil rights disputes. NELA regularly supports precedent-setting litigation af-fecting
the rights of individuals in the workplace. NELA has filed numerous amicus curiae briefs before this Court
regarding the proper interpretation and application of employment discrimination laws to insure that these laws
are fully enforced and that the rights of workers are fully protected. NELA participated as amicus curiae in the
lower court's decision, Garrett v. University of Alabama Bd. of Trs., 193 F. 3d 1214 (11th Cir. 1999). Given NELA's
extensive amicus participation in some of the most important decisions concerning Eleventh Amendment
immunity and employee rights, NELA desires to offer its input on this very important issue.
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2
NFB, the leading national organization of blind persons, has affiliates in all 50 states, the District of Columbia and
Puerto Rico. The vast majority of the Federation's approxi-mately 50,000 members are blind. The NFB is widely
recognized by the public, Congress, executive agencies of government, and the courts as a collective and representa-tive
voice of blind Americans and their families. The NFB
seeks to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves
into society on terms of equality and (2) removing barriers and changing social attitudes, stereotypes and mistaken
beliefs concerning blindness that are held by sighted and blind persons and that result in the denial of opportunity
to blind persons in virtually every sphere of life, including employment, education, family and community life,
transportation and recreation. The NFB has long been actively involved in promoting equality of opportunity in
employment through training, litigation and advocacy.
The American Diabetes Association is the leading ad-vocacy
group for advancing the employment rights of persons with diabetes. The Association was one of the
leading organizations lobbying for passage of the Ameri-cans with Disabilities Act (ADA) and has provided tech-nical
support to the Equal Employment Opportunity Commission in promulgating regulations and guidelines to
apply the Act to employment situations. The Association has been an active advocate in persuading government
agencies to revise employment regulations that undercut the employment rights and remedies of people with
diabetes. The Association has played a variety of roles in cases throughout the country, including filing amicus
curiae briefs before this Court, and serving as a party-plaintiff
when the civil rights of persons with diabetes have been violated.
AAUP is an organization of approximately 44,000 faculty
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members and research scholars in all academic disci-plines. Founded in 1915, the Association is committed to
the defense of academic freedom and the free exchange of ideas in scholarly and creative work. Among the organiza-tion's
central functions is the development of policy standards for the protection of academic freedom, tenure,
and other elements of higher education, including the
ability of professors who work for state universities to seek judicial redress for civil rights violations, such as
disability discrimination. See, e. g., On Discrimination, AAUP Policy Documents & Reports (1995 ed.). AAUP's
policies are widely respected and followed as models in American colleges and universities. See, e. g., Board of
Regents of State Colleges v. Roth, 408 U. S. 564, 579 n. 17 (1972). AAUP has participated as amicus in other sov-ereign
immunity cases threatening the civil rights of professors who teach at public institutions. AAUP is
concerned that holding public entities, such as state uni-versities, immune from the ADA will impair the ability of
professors and academic professionals to protect them-selves from disability discrimination in the workplace.
SUMMARY OF ARGUMENT
Section 5 of the Fourteenth Amendment empowers Con-gress "to enforce, by appropriate legislation" the mandates
of its first section, which provides that "No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
This grant permits Congress to "remedy and deter"
unconstitutional acts that violate Section 1, as well as
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"prohibiting a somewhat broader swath of conduct, in-cluding that which is not itself forbidden by the Amend-ment's
text." Kimel v. Florida Bd. of Regents, 120 S. Ct. 631, 644 (2000). While Congress has "wide latitude" in defining
the bounds of the latter through prophylactic legislation, "[ t] here must be a congruence and proportionality between
the injury to be prevented or remedied and the means
adopted to that end." City of Boerne v. Flores, 521 U. S. 507, 520 (1997).
Thus, relevant to determining whether Congress has acted within the bounds of Section 5 is an understanding
of the extent and nature of the "injury to be prevented" by the ADA. This brief demonstrates that before and after the
ADA's enactment, there has existed a widespread pattern of unconstitutional discrimination in the employment
arena by governmental agencies against disabled persons. Because Congress was confronted with a "widespread and
persisting deprivation of constitutional rights," id. at 526, it properly enacted Section 5 legislation— the Americans
with Disabilities Act— to remedy this evil.
Section I, infra, first establishes that stigma and stereo-type are the unconstitutional sources of discrimination by
public employers against disabled persons and then demonstrates how arbitrary and irrational state conduct
has affected all disabled persons. Section II, infra, delin-eates instances of unconstitutional governmental actions
that have affected the employment of persons with particular disabilities.
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2 Many instances of discrimination by municipalities and
counties flow from their application of state laws or regulations. Moreover, because there is no basis to suppose that states will
operate differently in this regard from subordinate governmen-tal entities and because a state job in one jurisdiction may be a
county or local one in another, this brief describes instances of unconstitutional discrimination in the public sector at all levels.
ARGUMENT
I. Stereotypes and Stigmatization— Barriers to Em-ployment of the Disabled— Exist in the Public
Sector and Violate the Equal Protection Clause.
The principal barriers to employment for persons with disabilities arise not from the nature of their disabilities,
but from (1) stereotypes that equate disability with in-capacity and that are grounded in unfounded assumptions
and (2) baseless fears or repulsion, that is, stigmatization. States and other public employers have acted on the
prejudices endemic in society at large. 2 As this Court noted in the context of Section 504 of the Rehabilitation
Act, applicable to certain public sector employment,
"Congress [there] acknowledged that society's accumu-lated myths and fears about disability and disease are as
handicapping as are the physical limitations that flow from actual impairment." School Bd. of Nassau County v.
Arline, 480 U. S. 273, 284 (1987). Governmental decisions about persons with disabilities based on myths or un-founded
fears violate the Equal Protection Clause. City of Cleburne v. Cleburne Living Ctr, 473 U. S. 432, 450 (1985).
Discrimination based on stigma arises particularly for persons with diseases or with visible disabilities.
For example, in a survey cited in a congressionally auth-orized study, employers reported that paraplegics were
best suited for jobs with a minimum of public contact
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3 Cited in Urban Institute, Report of the Comprehensive Service
Needs Study at 321 n. 32 (1975). Congress had authorized the study as part of the Rehabilitation Act of 1973 and heard its
results in 1976. See Rehabilitation of the Handicapped Programs 1976: Hearings before the Subcomm. on the Handi-capped
of S. Comm. on Labor and Public Welfare, 94 th Cong. 629-62 (1976) (testimony of Jerry Turem, chief author of the
Needs Study).
4 "There are individuals who have facial or other disfigure-ments
that are a little repulsive to the public. They cannot get or hold a job unless they are given plastic operations or pros-thetic
devices which can correct most of the disfigurement. Often that alone enables them to resume their former occu-pations."
Rep. Walter Judd, regarding the Barden-LaFollete Amendments to Rehabilitation Act, 89 Cong. Rec. 5660 (1943)
[hereinafter Barden-LaFollette].
5 "When we speak of the blind, we immediately picture a figure
in dark glasses standing at a street corner with a tin cup. In the face of the present shortage of manpower for essential war
industries, we are just beginning to become aware of a reservoir of competent, dependable labor that has been waiting for an
opportunity to become useful— the blind workers of this country. . . . The real man is often masked behind his physical
(continued...)
because of the public's reaction to the disability. Felton & Litman, Study of Employment of 222 Men with Spinal Cord
Injury, 46 Archives of Physical Med. & Rehab. 809 (1965). 3 As early as 1943, members of Congress took note of the
problem of stigmatization, recognizing that the visibility of a disability, rather than its impact on job performance,
is often a barrier to employment. 4
Congress also recognized that stereotyping can bar disabled persons from work that they are competent
to perform. 5 As Congress heard again in 1973, "[ t] oo
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5 (... continued)
handicap. . . ." Barden-LaFollette, supra note 4, at 5664 (statement of Rep. William Troutman).
6 Randolph-Sheppard Act for the Blind Amend. of 1973 Hear-ings
on S. 2581 before the Subcomm. on the Handicapped Labor & Public Welfare Comm. 93d Cong. 66 (1973) [herein-after
Randolph-Sheppard Hearings] (testimony of Charles W. Hoehne).
frequently, public attitudes and popular misconceptions about the 'helplessness' of the handicapped present in-dividuals
with far more formidable vocational obstacles than do the physical disabilities such individuals might
actually have sustained." 6
Statistics demonstrate the nature and sweeping effect of employment discrimination by the states. In April 1989,
the Advisory Commission on Intergovernmental Relations (ACIR) reported that "[ n] ot working is perhaps the truest
definition of what it means to be disabled." Disability Rights Mandates: Federal and State Compliance with
Employment Protections and Architectural Barrier Removal 18 (April 1989). Over four-fifths of the state
government representatives surveyed believed that negative attitudes and misconceptions had a moderate to
strong impact on the ability of disabled persons to secure state employment. Id. at 72. At the root of these attitudes,
state employers reported, were "feelings of discomfort in associating with disabled individuals" and "inaccurate
assessments of their productivity." They acknowledged that "negative attitudes persist, despite evidence that
handicapped workers are productive." Id. at 73.
A study issued shortly after the passage of the ADA reported that New York state employees "confront dis-abilities
with stereotypes, ignorance, misinformation, fear,
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7 Sharon L. Harlan & Pamela M. Robert, Disability in Work
Organizations: Barriers to Employment Opportunity, Final Report at xiii, State Univ. of New York, Albany (1995).
8 Implementation of Section 504, Rehabilitation Act of 1973:
Hearings before the House Subcomm. on Select Educ. of the Comm. on Educ. and Labor, 95 th Cong. 302-303 & 317 (1977)
[hereinafter Section 504 Hearings] (statement of David Tatel).
and pity that impede progress toward equal opportunity," and concluded that "cultural attitudes toward disability
are the most enduring barriers to the full participation of people with disabilities in society." 7
In the face of such widespread discrimination, com-plaints against public sector employers have been over-whelming.
In September 1977, the Director of the Justice
Department's Office for Civil Rights explained to a House Subcommittee that disability discrimination complaints
filed under Section 504 of the Rehabilitation Act of 1973 were increasing sharply. The majority of these complaints
concerned employment discrimination by governmental entities, including school districts, colleges and universi-ties,
health facilities and social service agencies, and involved failures to hire or rehire, dismissals, suspen-sions,
and failures to promote. These complaints were so numerous that they were beyond the ability of the Justice
Department to handle. 8
The states have also discriminated against persons with
disabilities in training for employment. For example, the Comprehensive Employment and Training Act (CETA)
was enacted to provide programs to train the unemployed. But as Congress was advised, the programs run by govern-
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9 Oversight Hearings on the Rehabilitation Act of 1973: Hear-ings
before the House Subcomm. on Select Educ. of the Comm. on Educ. and Labor, 95 th Cong. 368 (1978) [hereinafter Over-sight
Hearings] (statement of T. P. Hipkins). 10
Id.
11 Id. at 369. Over twenty years later, the Mendicino County
Department of Social Services routinely diverted disabled applicants from the County work program and directed them to
apply for SSI benefits. OCR Significant Cases, Americans with Disabilities Act: TANF, U. S. Dept. of Health and Human
Services, Office of Civil Rights, (March 2000) Available at http:// www. hhs. gov/ progorg/ ocr/ casesum. html.
mental entities shunned the disabled. 9 On a nationwide basis "handicapped men and women made up . . . less than
3% of those [enrolled] in public service jobs under titles II and VI" of CETA. 10 Program operators, Congress was told,
were "reluctant to deal with handicapped persons because they feel uncomfortable or don't know how to respond.
They may have unpleasant feelings of pity, helplessness,
fear, or revulsion." 11
The CETA experience is in no way a localized problem. Negative stereotypes of the disabled as incapable infect
the very state rehabilitation agencies charged with assisting the disabled with employment. One witness
before Congress described the mindset so often typified by state rehabilitation agencies:
Disability has all too often been equated with lack of ability. Untested assumptions are evident, and
stereotyping has hidden the characteristics and abilities of persons with disabilities under the
blanket of these assumptions. As a result, low
expectancy is perhaps the single most critical deterrent to success for persons with disabilities.
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10
12 Oversight Hearings, supra note 9, at 308 (statement of
Ronald Torner for United Cerebral Palsy Assoc., Inc.).
13 Oversight Hearing on H. R. 4498, Americans with Disabili-ties
Act of 1988: Hearing before the Subcomm. on Select Educ. of the Comm. on Educ. and Labor, 100 th Cong. 41 (1988) [here-inafter
ADA Oversight Hearing] (statement of Donald Levine).
14 Oversight Hearings, supra note 9, at 561-62 (testimony of
George W. Fellendorf).
15 Civil Rights Restoration Act of 1985: J. Hearings on H. R.
700 Before the H. Comm. on Educ. and Labor and the Sub-comm. on Civil and Constitutional Rights of the Comm. on the
Judiciary, 99 th Cong. 155 (1985) [hereinafter 1985 Civil Rights Hearings] (statement of Ilene Shane).
An expectancy cycle has been established that perpetuates low levels of success and low func-tional
employment capabilities. 12
Thus, one state vocational rehabilitation agency refused to provide education and training to an individual para-lyzed
from the neck down, because "they did not see any reason" to get him off the SSI benefit rolls. 13 A spokesper-son
for the deaf explained
that to be served by [state] rehabilitation agencies for some disability groups, the client must himself
adopt the behavior and characteristics traditional to the handicap . . . . It is this insidious perpetua-tion
of situations that in themselves are handicap-ping that we seek to abolish. 14
Congress learned in 1985 of employees at the Mis-sissippi Industries for the Blind who had been denied pro-motions
based on their blindness. 15 A head-injured survi-vor testified that after he applied to work with newly head
24
24
Page 25
26
11
16 Americans With Disabilities Act of 1989: Hearings on H. R.
2273 before the H. Comm. on the Judiciary, 101 st Cong. 218 (1989) (statement of Geoffrey M. Baynard).
17 ADA Oversight Hearing, supra note 13, at 195 (statement of
Denise Karuth, Chair, Mass. Coalition of Citizens With Dis-abilities).
injured-persons, the State of Virginia withdrew the job announcement. 16 Tellingly, Congress heard from a blind
woman that the New York State Commission for the Blind would not sponsor her for a masters degree in rehabilita-tion
counseling because "the State would not hire blind rehabilitation counselors." 17
Quoting a rehabilitation agency psychiatrist that "all
blind persons follow a pattern of dependency," Congress-man Baring remarked with respect to state rehabilitation
agencies:
Naturally it follows, for those who accept this line of reasoning, that blind people must be closely
supervised and protected, not only in the specific area of need in which they may seek aid but in
most aspects of their lives, and not merely for a limited period of training and assistance and
virtually from cradle to grave.
105 Cong. Rec. A1006-07 (1959) (Hon. Walter S. Baring).
The following section provides a sampler of unconsti-tutional
discrimination against persons with disabilities that arise directly from these misconceptions.
II. An Extensive Record Demonstrates Public Sector Employment Discrimination Against the Disabled
Based on Fear, Stigma and Stereotype.
A. Persons with Cancer Histories
25
25
Page 26
27
12
18 Employment Discrimination Against Cancer Victims and the
Handicapped: Hearing before the House Subcomm. on Employ-ment Opportunities of the Comm. on Educ. and Labor on H. R.
370 and H. R. 1294, 99 th Cong. 5 (1985) [hereinafter Employ. Hearing of 99 th Cong.] (statement of Rep. Mario Biaggi).
19 Hearing on Discrimination Against Cancer Victims and the
(continued...)
This Court has noted the irrational discrimination com-mitted by public sector employers against persons with
cancer histories: "Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer
have faced discrimination based on the irrational fear that they might be contagious." Arline, 480 U. S. at 284 (citing at
n. 13, inter alia, Senator Humphrey's remarks, 123 Cong.
Rec. 13515 (1977)).
Another court has noted that there is "little question that cancer history raises barriers to employment op-portunities
. . . unrelated to a person's qualifications." See, e. g., Burris v. City of Phoenix, 875 P. 2d 1340, 1344-45 (Ariz.
Ct. App. 1993) (applicant for a firefighter position who had recovered from testicular cancer was arbitrarily refused
employment).
In 1985 and 1987, a Congressional committee focused on employment discrimination against persons with a history
of cancer. Each hearing saw dramatic statistics of employ-ment discrimination against cancer survivors. At the first
hearing, one Congressman cited a study showing that more than half of cancer patients in white collar jobs and
84% of those in blue collar occupations suffered some kind of discrimination when they returned to work, if they had
work to which to return. 18 At the second, there was testimony that close to one million Americans encounter
workplace discrimination after being cured. 19
26
26
Page 27
28
13
19 (... continued)
Handicapped: Hearing before the House Subcomm. on Employ-ment Opportunities of the Committee on Educ. and Labor, 100 th
Cong. 28 (1987) [hereinafter Employ. Hearing of 100 th Cong.] (statement of Rep. Mario Biaggi).
20 The examples included a 24 year-old who had been free of
Hodgkin's disease and its treatment for six years, but who was denied employment as a New York City police officer because of
that history; a man who was denied entry into the United States Coast Guard Reserves because of "history of cancerous
tumor;" a man who was fired from his position as heavy equipment operator for the city of DeWitt, New York, even
though he had recovered from leukemia and had been pro-nounced fully fit to work by his doctor; a recovered Hodgkin's
Disease patient who was "medically disqualified" for Peace Corps Service because of his medical history; a New York City
Transit Authority policeman who was denied employment with the New York City Police Department who had recovered from
Hodgkin's disease, but who was rejected based on a require-ment that applicants have no history of malignant tumors.
Employ. Hearing of the 99 th Cong., supra note 18, at 5-9 (state-ment of Rep. Mario Biaggi), and at 42-44 (statement of An-thony
Igneri). Additionally, a man who had recovered from Hodgkin's disease was disqualified by the New York State Civil
Service Commission from employment as a police officer based on his history of cancer, even though Sloan Kettering Memorial
Hospital attested that he was in perfect health. Employ. Hearing of 100 th Cong., supra note 19, at 61-79 (statement of
Timothy Calonita).
Numerous instances of irrational discrimination in the public sector against recovered cancer patients were cited
at both hearings. 20 One witness, an oncologist, testified that discrimination against recovered cancer patients was
"more prevalent in the public sector" than in the private: "I found more cases [of discrimination by] boards of
27
27
Page 28
29
14
21 Employ. Hearing of 99 th Cong., supra note 18, at 57 (state-ment
of Dr. Ivan Barofsky).
22 Centers for Disease Control and Prevention, HIV and Its
Transmission (July 1999). 23
HIV positive individuals can safely work in most jobs without threat of transmission. See Centers for Disease Control and
Prevention, U. S. Dep't of Health & Human Servs., Recom-mendations for Prevention of HIV Transmission in Health-care
Settings, 36 Morbidity & Mortality Weekly Rep. 2S, 3-4 (August 21, 1987).
24 Nationwide Survey Finds Continuing Stigma and Misinfor-mation
About Aids, National Institute of Mental Health (July 1, 1998).
education, . . . the military, [and] government agencies, than maybe people realize." 21
B. Persons with HIV
Because human immunodeficiency virus (HIV) is trans-mitted only through sexual contact, invasive exposure to
blood or certain other bodily fluids, or by perinatal ex-posure, 22
there are very few jobs in which a person with HIV risks infecting coworkers or customers. 23 None-theless,
irrational fears among employers abound. In a recent survey funded by the National Institute of Mental
Health, approximately half of the respondents believed that AIDS might be transmitted through sharing a drink-ing
glass, being coughed or sneezed on, or using a public toilet. 24 As a result, "[ t] he public is more likely to stigma-tize
persons with AIDS to the extent that they believe that the virus is easily spread and that people with AIDS
28
28
Page 29
30
15
25 Id.
26 In considering whether to enact the ADA, Congress was told
of the discrimination suffered by Mr. Chalk. Hearing on H. R. 2273, The Americans with Disabilities Act of 1989: J. Hearing
before the H. Subcomm. on Employment Opportunities and Select Educ. of the Comm. on Educ. and Labor, 101 st Cong. 105
(1989) [hereinafter 1989 ADA Hearing] (statement of Arlene Mayerson).
27 Americans with Disabilities Act of 1989: Hearing on S. 933
before the S. Comm. on Labor and Human Resources and on the Handicapped, 101 st Cong. 404 (1989) (statement of Nat'l Orgs.
Responding to AIDS Coalition). 28
Ala. Code. 34-14-4 (1997); Del. Code Ann. tit. 24, § 3715 (1997); 201 Ky. Admin. Reg. 7: 02 (1994); N. C. Gen. Stat. § 93-
(continued...)
should be blamed for their illness." 25
Unfortunately, public sector employers share these false perceptions. For example, in Chalk v. United States
District Court, 840 F. 2d 701, 707 (9th Cir. 1988), a teacher with AIDS was barred from his classroom due to an un-founded
fear that he might transmit AIDS to his students by some heretofore unknown method of contagion, even
though the employer's expert acknowledged that there was no scientific evidence of possible alternative routes
for infection. 26 Congress was told of a professor of veteri-nary medicine at a state university who was fired because
he had AIDS. 27 At least eleven states by statute deny licenses to practice various professions to persons with
contagious diseases without regard to whether the disease is transmissible in the practice of that profession. For
example, someone with HIV cannot be a hearing aid dealer in Alabama, Delaware, Kentucky, North Carolina or North
D a k o t a , 2 8 o r a b a r b e r i n M i s s i s
29
29
Page 30
31
16
28 (... continued)
D5 (1991); N. D. Cent. Code § 43-33-07( d) (1993).
29 Miss. Code Ann. § 73-5-25( c)( 1972); N. D. Cent. Code § 43-04-
40 (1993); Or. Rev. Stat. § 690.075 (1989), amended by 1999 Or. ALS 425, 1999 Or. SB 290; S. C. Code Ann. § 40-7-240( 3)
(1986); Tenn. Code Ann. § 62-3-121( 3) (1997); Wis. Stat. § 454.15( 2)( e)( 1998); Wyo. Stat. Ann. § 33-7-207 (Michie 1999).
30 Employ. Hearing of 100 th Cong., supra note 19, at 2 (state-ment
of Subcomm. Chairman Matthew G. Martinez).
sippi, North Dakota, Oregon, South Carolina, Tennessee, Wisconsin or Wyoming. 29 No rational connection can be
drawn between the purpose of protecting the public in the sale of hearing aids and barring persons with HIV from
selling hearing aids.
C. Persons with Epilepsy
For at least twenty years, it has been true that 80% of epileptics have their seizures controlled by medication.
Kettle & Massie, Need a Disability Be A Handicap? 13: 2 Personnel Mgmt 32 (1981). Yet three years before the
enactment of the ADA, Congress learned that 85% of people with epilepsy were unemployed. 30 Clearly, such
disparate numbers reflect irrational fear is at work, even the fear that epilepsy is contagious. See Arline, 480 U. S. at
284.
30
30
Page 31
32
17
31 Mr. Duran would fare no better today in Idaho, which re-quires
a police officer to be free of any physical defects and chronic or organic diseases or conditions. Idaho Admin. Code
11.11.01 (2000).
32 1985 Civil Rights Hearings, supra note 15, at 673 (statement
of Julie Ann Hiller).
33 Civil Rights Act of 1984: J. Hearing on S. 2568 before the S.
Subcomm. on Educ., Arts and Humanities and the Subcomm. on the Handicapped of the Comm. on Labor and Human Re-(
continued...)
In Duran v. City of Tampa, 430 F. Supp. 75, 76 (M. D. Fla. 1977), the plaintiff sought employment as a police officer,
but episodes of childhood epilepsy automatically barred him from consideration, even though he had been seizure-free
for sixteen years and had not taken medication for nine. Unrebutted medical testimony established that
because Mr. Duran had outgrown his childhood epilepsy,
his likelihood of having future seizures was that of the general population. The court, holding that the plaintiff
was likely to prevail on the merits, noted that the "public interest demands that all individuals capable of perform-ing
a particular task be placed on an equal footing." Id. at 78-79. 31
Similarly, Congress heard from a woman with a Master's degree in social work whose job offer as a children's
service worker for the Los Angeles Department of Social Services was withdrawn after the agency learned of her
history of epilepsy, even though she had been seizure-free for eleven years. 32 Congress also heard from a volunteer
juvenile group counselor with controlled epilepsy whose application for that same position as an employee was
denied because of his epilepsy. 33
31
31
Page 32
33
18
33 (... continued)
sources, 98 th Cong. 32 (1984) [hereinafter 1984 Civil Rights Hearing] (statement of Clarence Hart).
34 J. Neil Russell et al., Trends and Differential Use of Assistive
Technology Devices: United States, 1994, Advance Data No. 292 (Nat'l Ctr. for Health Statistics 1997).
35 U. S. Census Bureau, Survey of Income and Program Par-ticipation
(SIPP), 1994-1995. 36
Testimony concerning this case was presented to Congress. (continued...)
Even today, Massachusetts specifically bars all persons with epilepsy from being licensed as a barber, without
regard to whether medication controls their seizures. Mass. Ann. Laws ch. 112, §87L (2000).
D. Persons with Mobility Impairments
Approximately 7.4 million Americans with mobility im-pairments
use Assistive Technology Devices (ATDs). 34 Persons with mobility impairments are able to perform
the overwhelming majority of jobs by using wheelchairs, motorized scooters, canes, braces and walkers. Nonethe-less,
only 22% of working-age wheelchair users and 27% of cane, crutch or walker users are employed. 35 Much of this
unemployment is the product of stigma and stereotype.
In one dramatic example of stigmatization in the public sector, a physician with multiple sclerosis was denied a
residency in psychiatry, because "the devastation, guilt, pity and rage that can be stirred up in his patients by his
physical condition appears to be too much to ask of his
patients or of him." Pushkin v. Regents of the Univ. of Colo., 658 F. 2d 1372, 1387 (10th Cir. 1981). 36
32
32
Page 33
34
19
36 (... continued)
See 1984 Civil Rights Hearing, supra note 33, at 28 (statement of Arlene Mayerson).
37 See also Smith v. Fletcher, 393 F. Supp. 1366, 1368 (S. D.
Tex. 1975), modified, 559 F. 2d 1014 (5th Cir. 1977) (Plaintiff with a Master's degree in physiology who was a paraplegic
denied promotions by NASA and assigned menial clerical tasks because of "an arbitrary and unfounded decision as to her
physical capabilities.").
38 Section 504 Hearing, supra note 8, at 460-62 (letter from
Steve Halpert, M. D.). 39
Section 504 Hearing, supra note 8, at 459 (letter from Bar-bara Hoffman, Ph. D.).
Two examples demonstrate that even those who succeed in securing public employment are often hindered by
employers' irrationality. 37 A quadriplegic psychiatrist applying for a position at a Veterans Administration
Hospital in Tampa was asked, bizarrely, if he could read, write and handle a medical chart. Although he was ulti-mately
hired, when he applied unsuccessfully some years
later for a position at another VA hospital, he was told by the Chief of Psychiatry at this second institution that he
had not been hired because of his wheelchair. 38 A psychol-ogist with cerebral palsy was not invited to sit on a
professional panel on the assumption that her speech would be difficult to understand— even though her speech
was unimpaired. As she explained to Congress, "Early experience with agencies and institutions revealed inbred
prejudices against the physically 'different' person which existed at administrative levels throughout our nation and
closed doors to job opportunities to those who have handicaps which are visible." 39
Stereotypes that ascribe false significance to impairment
33
33
Page 34
35
20
40 The case was ultimately dismissed as moot after the defen-dant
reversed itself, granted plaintiff a license and a position. The Senate Report on the ADA noted Ms. Heumann's experi-ence.
S. Rep. No. 116, 101 st Cong. 7 (1989).
41 Carr v. Fort Morgan Sch. Dist., 4 F. Supp. 2d 989 (D. Colo.
1998); see Jim Kirksey, Disabled Man to Realize Dream – to Teach, Denver Post, Aug. 26, 1998 at B-9 (identifying the na-ture
of the disability which was unmentioned in the opinion).
42 Section 504 Hearings, supra note 8, at 471 (letter from
George G. Gyrisco).
regularly produce irrational public employer hiring decisions. For example, a teacher was denied a license
because, being confined to a wheelchair as a result of poliomyelitis, she was deemed "physically and medically
unsuited for teaching." Heumann v. Board of Educ., 320 F. Supp. 623 (S. D. N. Y. 1970). 40 More recently, in Colorado, a
teacher with muscular dystrophy who was refused a job
interview at a local high school simply because he used a wheelchair, subsequently secured an injunction requiring
the school district to employ him. 41 A full professor who became mobility impaired found his grants with the
National Science Foundation given to others. 42
Melvin v. City of W. Frankfort, 417 N. E. 2d 260 (App. Ct., 5th Dist. 1981) powerfully illustrates why myths per-sist—
they seem so true to those who fail to obtain the facts about a particular disability. Melvin involved the un-founded
assumption that a firefighter with a prosthesis below the knee would be more limited than persons
without an amputation. In fact, the Fire Chief of West
Frankfort attested that Mr. Melvin's performance as a volunteer fireman had been without limitation and he
passed all physical requirements for employment as a
34
34
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36
21
43 As licensors, states also discriminate by imposing across-the-board
requirements of physical soundness without regard to whether a disability relates to the performance of an occu-pation.
North Dakota requires that all nursing home administrators be "of sound physical and mental health." N. D.
Cent. Code §43-34-03 (2000). In Connecticut, a variety of (continued...)
firefighter. Id. at 261-62. Because state law barred all amputees from being employed as firefighters, the Chief
could not hire him. Id. The court struck down the statute because it created a distinction not "based upon particu-larized
performance related incapacities." Id. at 263. Sim-ilarly, a sheet metal worker who, after his amputation had
plied his trade for eighteen years, was rejected for the
same work by a state university, on the assumption that he could not climb scaffolding. In the face of testimony that
he routinely climbed ladders and worked on scaffolds and roofs, the court concluded that the university had erred by
assuming that amputees as a group were incapable of performing the work. Board of Trs. v. Human Rights
Comm'n, 485 N. E. 2d 33, 36 (Ill. App. 4th 1985).
In Kentucky, a state regulation precluded anyone "who does not possess both of his natural legs" from driving a
school bus. 702 Ky. Admin. Reg. 5: 080( 1) (1999). Again, an unfounded assumption was in play when a local school
district refused to hire the plaintiff, whose leg had been
amputated. However, when capacity became an issue of fact, the court struck down the statute, because the
evidence was undisputed that he was "a highly competent bus driver who is not hindered at all by his
prosthesis . . . and is well-qualified for the position he seeks." Coleman v. Casey Bd. of Educ., 510 F. Supp. 301,
303 (W. D. Ky. 1980). 43
35
35
Page 36
37
22
43 (... continued)
licenses may be suspended or revoked for any physical illness, without regard to its impact, vel non, on the license holder's
performance of these professions. Conn. Gen. Stat. 385 § 20-227 (1999) (funeral home director); Conn. Gen. Stat. 371 § 20-
29 (1999) (chiropractor); Conn. Gen. Stat. 384 § 20-202 (1999) (veterinarian); Conn. Gen. Stat. 386 § 20-238 (1999) (barber);
Conn. Gen. Stat. 387 § 20-263 (1999) (hairdresser and cosmetician).
44 Maureen J. Harris, Summary, in DIABETES IN AMERICA 1
(National Institutes of Health, NIH Publication No. 95-1468 2 nd ed., 1995).
E. Persons with Diabetes
As of 1993 there were approximately 14 million Americans with diabetes. 44 Although the Court said in
Sutton v. United Air Lines, Inc., 527 U. S. 471, 483 (1999), that many who have diabetes are unimpaired in major life
activities, state employers nonetheless engage in arbitrary
discrimination by stereotyping all persons with diabetes without regard to whether their disease is under control.
A bus driver whose diabetes had been under control since shortly after her diagnosis was barred from employment
by a Pennsylvania regulation that forbids persons with diabetes who use medication from working as school bus
drivers. Commonwealth v. Tinsley, 564 A. 2d 286 (Pa. Commw. 1989). Although the court held the regulation
unlawful, it has not been repealed. 67 Pa. Code 71.3( b)( 4) (1998). A similar regulation in Wisconsin was struck down
in Bothum v. Department of Transp., 396 N. W. 2d 785,786 (Ct. App. Wisc. 1986), under a state law that embodied the
essence of Equal Protection analysis— that is, the regulation was not reasonably related to the person's
36
36
Page 37
38
23
45 Cornell University, Implementing the Americans With Dis-abilities
Act: Working Effectively with Persons who are Deaf or Hard of Hearing (April 1994).
46 In Re El Dorado County Sheriff's Dep't, 1979 CAFEHC
LEXIS 8 (Ca. F. E. H. C. Sept 6, 1979).
47 Press Report, U. S. Department of Justice, Civil Rights Di-vision,
Enforcing the ADA: A Press Report from the Dep't of Justice for the Mid-Atlantic Region, available at http:// www.
usdoj. gov/ crt/ ada/ pubs/ reg3rpt. htm. (last updated June 27, 2000).
48 Estimates of persons in the United States who are legally
(continued...)
ability to perform the job.
F. Hearing Impairments
Hearing loss affects nearly 10% of the U. S. population. About one and a half million Americans are deaf. When
those who are deaf can secure work, employers frequently rate deaf and hard-of-hearing workers as better or about
the same in task performance as hearing co-workers. 45 But often employers impose standards for aural acuity
unrelated to job performance. For example, a deputy sheriff was discharged for a mild hearing loss that did not
affect his ability to carry out his job. 46 Similarly, the City of Fairfax, Virginia utilized a national standard for
hearing loss for firefighters that did not relate to the ability of the individual firefighter to perform. 47
G. Persons with Vision Impairments
About 1 million Americans are considered legally blind. 48
37
37
Page 38
39
24
48 (... continued)
blind— defined as having corrected vision which is worse than 20/ 200— range from 750,000 to 1.1 million. See Yen-Pin
Chiang, et al., Federal Budgetary Costs of Blindness, 70-2 The Millbank Quarterly 319-340 (1992).
49 Kenneth Jernigan, Blindness— Concepts and
Misconceptions, The Braille Monitor, 76 (Aug. 1965). 50
Id.
Alternative techniques for performing tasks that do not rely on sight have made it possible for blind persons to
perform most workplace tasks.
It is no longer theory but established fact that, with proper training and opportunity, the average
blind person can do the average job in the average place of business— and do it as well as his sighted
neighbor . . . the skills of independent mobility, communication, and the activities of daily living
are known, available, and acquirable. 49
Despite the fact that the blind can hold most jobs, unfounded stereotypes persist. "In other words the real
problem of blindness is not the blindness itself— not the acquisition of skills or techniques or competence. The real
problem is the lack of understanding and the misconceptions which exist." 50
While those with no mobility impairments can easily picture the utility and limitations of a wheelchair, sighted
people often incorrectly assume the absence of non-visual
alternative techniques to perform tasks for which people with vision rely on sight. In noting that the paternalism of
rehabilitation agencies is most severe with respect to the blind, one Congressman explained,
38
38
Page 39
40
25
51 See Marc Maurer, Children and Chain Saws, in To Touch
the Untouchable Dream 21 (Kenneth Jernigan, ed. 1993); Barbara Pierce, Climb Every Mountain, in Making Hay 109
(Kenneth Jernigan, ed. 1993); Marc Maurer, Reflecting the Flame 1 (1999).
blindness . . . is regarded almost universally as qualitatively different and far more crippling in its
consequences than the run of physical disabilities or social disadvantages.
105 Cong. Rec. A1006-07 (1959) (Hon. Walter S. Baring).
The pervasiveness and persistence of these stereotypes are such that many sighted people would be surprised to
discover that blind people safely use chain saws, scale cliffs and barbecue over hot coals. 51
In the context of amendments to the Randolph-Sheppard Act, 20 U. S. C. §107( 2000), one witness captured the vicious
cycle that misconceptions about the blind have created:
popular misconception about the 'helplessness' of blind persons . . . had existed for thousands of
years. The misconceptions amounted to a self-fulfilling prophecy: Most people thought the blind
were fit for little more than mendicancy; as a result of this attitude, the blind were not given the
same employment opportunities as the sighted;
and as a result of the lack of opportunities, all too many blind persons did in fact end up being
dependent upon charity— or upon public welfare programs.
Franklin Roosevelt [who signed the Randolph-Sheppard Act] knew that this popular attitude was
wrong and that there was no substantial or necessary basis for the myth about the
39
39
Page 40
41
26
52 Randolph-Sheppard Hearing, supra note 6, at 63-64
(Charles W. Hoehne).
53 Gurmankin v. Costanzo, 556 F. 2d 184, 187 n. 5 (3d Cir.
1977). While Gurmankin was decided under the irrebuttable presumption doctrine of Cleveland Bd. of Educ. v. LeFleur, 414
U. S. 632 (1974), a doctrine of debatable scope and vitality, the Third Circuit later noted that the Philadelphia school board's
policy violated the Fourteenth Amendment, because it "was not rationally related to the legitimate state goal of assuring
teacher competence." Malmed v. Thornburgh, 621 F. 2d 565, 575 (3d Cir. 1980).
54 Connecticut Inst. for the Blind v. Connecticut Comm'n on
Human Rights and Opportunities, 405 A. 2d 618, 621 (1978).
'helplessness' of the blind. 52
The Philadelphia school system prohibited a blind English teacher from applying to teach sighted students.
The Third Circuit concluded that her Fourteenth Amendment rights had been violated, noting that "[ t] he
very point of this case is that [by] denying [plaintiff] the opportunity to take a qualifying exam, the defendants de-prived
her of the opportunity to present evidence of her qualifications." 53 In 1978 the Supreme Court of
Connecticut held unlawful the refusal of a school district to hire a blind teacher's aide pursuant to a policy which
required teachers to have 20/ 20 vision. The decision, although on state law grounds, cast the school district's
error in classic Fourteenth Amendment grounds: "classifying individuals by means of criteria irrelevant to
the ultimate end sought to be accomplished . . . ." 54
Discrimination flourishes, even in our legal institutions. Congress heard in 1985 about a blind lawyer who had
worked for the Los Angeles County District Attorney's
Office as a Senior Law Clerk. While Senior Law Clerks
40
40
Page 41
42
27
55 1985 Civil Rights Hearings, supra note 15, at 656-57 (state-ment
of Stanley Fleishman).
56 "Blind people today work as lawyers, psychologists,
machinists, farmers, and hairdressers; but the best estimates indicate that 70% of those who are able to work still do not
have jobs or work only a few days a month in sheltered workshops. Many thoroughly capable blind persons have never
had a job." Daniel Finkelstein, Blindness and Disorders of the Eye 47 (Nat'l Federation of the Blind 1989).
were hired with the understanding that those who passed the bar and had performed competently would be offered
positions as Deputy District Attorneys, this lawyer was told that he would not, because he was blind. 55
Richardson v. Purvis, 402 So. 2d 910 (Ala. 1981) demonstrates well the irrationality that persons with
disabilities so often face. The Sheriff of Mobile County
hired a corrections officer, knowing he was blind in one eye. The officer had already performed this job for several
years before the institution of a merit system, and all agreed that his loss of vision had had no detrimental effect
on his performance. Even though the Sheriff believed, the County's examining physician concurred, and the
"evidence was uncontradicted that Tillman's loss of vision . . . did not affect his ability to perform the duties of
a correction officer," id. at 911, the personnel director of the county refused to affirm the hiring because of medical
standards adopted by the Board to the contrary.
The impact of prejudice is severe: nearly three-quarters
of working-age blind who want to work are unemployed. 56
CONCLUSION
41
41
Page 42
43
28
57 1989 ADA Hearing, supra note 26, at 74 (statement of
Arlene Mayerson). 58
Id. at 78.
The experiences recounted here of irrational discrimination by public employers against persons with
disabilities are, unfortunately, not anomalies. As different as these persons, their disabilities and their experiences
are from each other, they all fall within a pattern of "discriminatory practices based on unfounded, outmoded
stereotypes and perceptions and deeply embedded preju-dices
toward disabled people." 57 In testimony addressing the proposed Americans with Disabilities Act, Arlene
Mayerson identified with precision the nature of this prejudice: "Over the years, the view of disabled people as
incompetent and dependent upon charity, custodial care and protection [has become] firmly embedded in the public
consciousness." 58
As this brief demonstrates, the states, as employers, as licensors and as rehabilitators, share the prejudices of
society at large. Arbitrary governmental action, however, is more pernicious than private discrimination: (1) it
legitimates society's unfair consensus and (2) because such
action is so often embodied in statutes and regulations, it is not easily remedied without litigation or concerted
action. Such arbitrary and irrational action by state actors is precisely what the Fourteenth Amendment seeks to
forbid. For these reasons, Congress was fully justified in exercising its powers under that amendment to enact the
Americans with Disabilities Act to redress these grievous wrongs.
Respectfully submitted,
42
42
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29
MERL H. WAYMAN Barrister Building
338 South High Street Columbus, OH 43215
(614) 469-9960
PAULA A. BRANTNER Senior Staff Attorney
NATIONAL EMPLOYERS LAWYERS ASSOCIATION
600 Harrison Street Suite 535
San Francisco, CA 94107 (415) 227-4655
DANIEL F. GOLDSTEIN Counsel of Record
C. CHRISTOPHER BROWN BROWN, GOLDSTEIN
& LEVY, LLP
520 West Fayette Street
Suite 300 Baltimore, MD 21201
(410) 962-1030
DONNA R. EUBEN Staff Counsel
AMERICAN ASSOCIATION OF UNIVERSITY
PROFESSORS
1012 14 th Street, N. W. Suite 500
Washington, DC 20005 (202) 737-5900
Counsel for Amici Curiae National Employment Lawyers Association,
National Federation of the Blind, American Diabetes Association and
American Association of University Professors
AUGUST 2000 43