Bush Judicial Nominee Threatens Disability Rights

Dennis Shedd's Record on Disability Issues

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August 23, 2002 -- Judge Dennis Shedd, a Bush nominee to the Fourth Circuit Court of Appeals, has a striking record of hostility toward civil rights during his years on the federal bench, including a consistent disregard for the rights of people with disabilities. He has ruled against disability rights plaintiffs in almost every instance, departing from settled law and adopting tortured interpretations of disability rights laws. His opinions routinely ignore evidence, stating in conclusory fashion that the plaintiff has failed to produce evidence to support her claims. For example:

Judge Shedd effectively read the right of employees to "reassignment" out of the Americans with Disabilities Act. Reassignment to a vacant position is a crucial protection for individuals with disabilities who can no longer perform their current jobs. Congress explicitly included reassignment as one type of accommodation required by the ADA. The Equal Employment Opportunity Commission (EEOC) and the courts have consistently interpreted the ADA to require an employer to reassign a person with a disability to a vacant position for which he is qualified, if such a position exists, when the person is no longer able to do his current job. Judge Shedd drastically limited the right to reassignment in a way that not only made no sense but was flatly contradicted by the EEOC, the agency on whose interpretations Judge Shedd purported to rely. Judge Shedd's decision stands out as both unique and bizarre.

Judge Shedd ignored the plain meaning of the ADA when he approved a state health insurance pool's refusal of coverage for a man who was HIV positive. The pool was designed to provide insurance for individuals whose medical conditions disqualified them from private insurance. No other medical condition was excluded, and the state had done no actuarial analysis to justify the exclusion of individuals with HIV/AIDS. While many courts have held that the ADA does not prevent insurance plans from providing lesser benefits for treatment of particular types of disabilities, Shedd's ruling that the ADA permits the complete exclusion from any benefits based on a person's disability goes way beyond those decisions. The plaintiff who brought this case sought to have it decided on an expedited basis, but died eight months later, before any decision was rendered.

Judge Shedd rejected a discrimination claim of a man who was fired because of his status as an alcoholic even though his alcoholism had no effect on his work performance and he was not intoxicated at work. The employer discovered that the man was drinking during a two-week period of leave approved by the employer, and fired him on that basis alone. The man was fired before he returned to work. A federal magistrate found no evidence that the man's alcoholism interfered with his ability to do his job and recommended that his claim be permitted to proceed. Nonetheless, Judge Shedd rejected the magistrate's recommendation and threw out the man's discrimination claim. He concluded, without citing any evidence, that the man's alcoholism rendered him unable to do his job, and therefore was not protected by the Rehabilitation Act.

Judge Shedd exhibited troubling attitudes toward individuals with disabilities in his courtroom. In a 1995 criminal trial, Shedd upheld the prosecutor's request to require the defendant's wife to hide that she was blind. The prosecutor was concerned that the wife's blindness would engender sympathy for the defendant. The prosecutor asked that the wife keep her cane out of sight. Shedd inquired of the defense attorney, "Does the cane have to be visible during the court trial?" The defense attorney replied that the woman depended on it. Shedd stated: "It is going to be down. I will stop the trial if she uses it for anything other than access in and out."

More Information

• ADA Watch