Courts have held that private individuals may file actions under the Rehabilitation Act against federal employers or against recipients of federal finan-cial assistance; the action need
Trang 1the result of “benign neglect” and is “primarily the result of apathetic attitudes rather than af-firmative animus” (Alexander v Choate, 469 U.S
287, 105 S Ct 712, 83 L Ed 2d 661[1985]) For example, a restaurant owner who fails to provide
a wheelchair ramp to the restaurant’s entrance is more likely to be guilty of failing to consider the needs of patrons than of expressing a specific dislike of wheelchair users
Whatever its roots, discrimination impedes those with disabilities from obtaining jobs that they are qualified to perform; access to some buildings and modes of transportation; and the indepen-dence and dignity that nondisabled people take for granted The U.S Constitution provides little relief Courts have held that mentally and phy-sically disabled persons do not fall within a suspect
or quasi-suspect class (i.e., classes subjected to a history of purposeful unequal treatment or politi-cal powerlessness) Thus, under the Constitution’s
EQUAL PROTECTIONclause, courts review government action affecting disabled people without the heightened orSTRICT SCRUTINYafforded suspect or quasi-suspect classes formed by race or religion
This lack of distinct constitutional protec-tion has resulted in legislative acprotec-tion Following
a concerted lobbying effort by and on behalf of individuals with disabilities, Congress in the late 1960s and early 1970s passed the first federal laws designed to protect disabled persons Lob-bying continued when these laws proved to be inadequate owing to their limited coverage Then,
in 1990, Congress passed the much-heralded Americans with Disabilities Act (ADA) (42 U.S
C.A §§ 12101–12213), legislation with a much broader application and a fair amount of contro-versy over the relative cost of its effectiveness
Rehabilitation Act of 1973
The Rehabilitation Act of 1973 (19 U.S.C.A §§
791, 793, 794) prohibits disability discrimina-tion by federal agencies, federal contractors, and other recipients of federal financial assistance
Types of prohibited discrimination include employment, education, building accessibility, and health, welfare, and social services Courts have held that private individuals may file actions under the Rehabilitation Act against federal employers or against recipients of federal finan-cial assistance; the action need not be brought by
a government entity APLAINTIFFwho proves that
a federal employer discriminated intentionally in violation of the Rehabilitation Act may receive compensatory andPUNITIVE DAMAGES
What constitutes a disability under the Re-habilitation Act is often the source of controversy Blindness, deafness, diabetes, cardiac problems, mobility impairments, and chronic fatigue syn-drome have been recognized as physical impair-ments The U.S Supreme Court has held that tuberculosis, a contagious disease, is a physical impairment (School Board v Arline, 480 U.S
273, 107 S Ct 1123, 94 L Ed 2d 307 [1987]) Numerous courts have followed the logic in Arline in holding that individuals who have AIDS
or who have tested positive for HIV, the virus that causes AIDS, are physically impaired Courts also have held that alcoholism, anxiety panic disorder, and post-traumatic stress disorder are impairments under the Rehabilitation Act Prior to the enactment of the Americans with Disabilities Act, section 504 of the Rehabilitation Act was the principal federal prohibition of discrimination on the basis of disability Even with the ADA, the Rehabilitation Act remains an important protection for those with disabilities The ADA expressly excludes from its coverage protection against discriminatory acts by the federal government, so the Rehabilitation Act provides the only privateCAUSE OF ACTIONfor disability discrimi-nation by federal employers and agencies The Rehabilitation Act also remains an alternative means of remedying discrimination even when a plaintiff concurrently invokes ADA protection
Individuals with Disabilities Education Act
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A §§ 1400–1485) requires states to provide a free, appropriate public education to children who are disabled Formerly known as the Education of the Handicapped Act or the Education for All Handicapped Children Act, the law was established in 1975
in response to studies showing that more than half of all disabled children were receiving an inappropriate public education, and about one-eighth of those children were simply excluded from public education altogether More than six million children had received special education due to the provisions of IDEA as of 2006 IDEA requires states seeking federal finan-cial assistance for education to develop plans ensuring disabled children a free education that meets their needs IDEA covers children ages three to 21 who have educational disabilities,
in other words, mental retardation; hearing, speech, or language impairments; visual
Trang 2impairments; serious emotional disturbances;
orthopedic impairments; autism; traumatic
brain injuries; and specific learning disabilities,
and as a result of such conditions require special
education and related services such as
trans-portation to and from school The act does
not, under normal circumstances, cover a child
who is nearsighted and needs glasses or a child
who walks with a leg brace; many children with
minor disabilities can be educated without
special attention
Each child covered by IDEA is entitled to
have an individualized educational program
(IEP) developed jointly by the child’s parents
and school personnel The IEP describes the
child’s abilities and needs and outlines
educa-tional placement and services that will address
the listed needs IDEA contains procedural
safeguards designed to ensure that parents can
participate in the IEP process and have methods
of recourse if they disagree with educators about
their child’s education
Finally, IDEA supports the integration
of disabled children by requiring that they
re-ceive their education in the least restrictive
environment The goal of this requirement is
to keep children with disabilities in regular public school classrooms to the extent possible
Only when a satisfactory education cannot be achieved in regular classes, even with the use
of supplementary aids and services, may a dis-abled child be removed from regular classes
In many cases, children with disabilities are mainstreamed—placed in a regular educational setting—for part of their school day and re-moved to a special-needs setting for the other part Depending on the disability, children may
be mainstreamed into certain academic classes
or simply during lunch, during study hall, or on the school bus
Architectural Barriers Act
The Architectural Barriers Act (ABA) (42 U.S.C
§§ 4151–4157) requires that federally owned, leased, or financed buildings be accessible to disabled persons Originally enacted in 1968, this law requires each of four federal agencies—the
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, theDEPARTMENT OF DEFENSE, theGENERAL SERVICES ADMINISTRATION, and the Postal Service—to pro-mulgate design, construction, and alteration standards for buildings within its jurisdiction
The coverage and the effectiveness of the ABA are limited The act encompasses the subway system in Washington, D.C., as well as (1) structures that the federal government constructs
or alters; (2) structures that the federal govern-ment leases; and (3) structures that depend on federal grants or loans for their design, construc-tion, or alteration If a federal agency is housed
in a building that was constructed by the federal government prior to the ABA’s original enact-ment date in 1968 and that building is not altered, it need not be accessible to disabled individuals under the ABA Further, when structures covered by the ABA are altered, only the altered portion need be made accessible
Thus, an altered wing of a building may have elevators, wheelchair ramps, and accessible rest rooms, whereas stairs in front of the building’s entrance render the building inaccessible to wheelchair users Perhaps the most obvious shortcoming of the ABA’s effectiveness is that it covers only buildings that are owned, leased, or financed by the U.S government Even after the ABA’s enactment, individuals with disabilities remained challenged by the many inaccessible buildings not covered under it
The Individuals with Disabilities Education Act requires
that states provide a free and appropriate public education
to children who are disabled.
AP IMAGES
Trang 3Americans with Disabilities Act
Despite the efforts of Congress, until 1990 no federal law outlawed most of the disability discrimination by employers, owners of places
of public accommodation, and program admin-istrators During the late 1980s, two-thirds of employable, working-age, disabled persons in the United States had no jobs, and many of those who were employed held a job far below their actual capabilities In the United States
in 1990, more than 8 million persons with disabilities who wanted to work were unable to find jobs and were forced to live on welfare and other government subsidies funded by taxpayers
Disabled individuals faced more obstacles when it came to transportation Because dis-abilities often prevent people from driving cars, many with disabilities must rely on buses, trains, and subways As of 1990, very few public modes
of transportation were accessible to those with disabilities That same year, Congress passed the Americans with Disabilities Act in the hopes
of alleviating day-to-day problems faced by those with disabilities
Employment Discrimination and the ADA Titles I and II of the ADA prohibit employers, employment agencies, labor organizations, and joint labor-management committees, in the pri-vate sector and in state and local governments, from discriminating on the basis of disability At the ADA’s effective date in July 1992, the act covered private employers with 25 or more employees; since July 1994 the act has covered
private employers with 15 or more employees All state and local government employers are covered, regardless of their number of employees
The EQUAL EMPLOYMENT OPPORTUNITY COMMIS-SION(EEOC) is the federal agency charged with overseeing the employment-discrimination pro-visions of the ADA That agency administers complaints and enforces the ADA The act also provides that its powers, remedies, and proce-dures may be invoked by the EEOC, the U.S attorney general, and any person alleging illegal discrimination pursuant to the ADA or its underlying regulations Any party seeking redress for ADA-prohibited discrimination must ex-haust certain administrative remedies before instituting a lawsuit
The employment discrimination outlawed
by the ADA may take one of several forms explicitly defined by the act: (1) limiting, segre-gating, or classifying job applicants or emplo-yees in a way that adversely affects the status or opportunities of a disabled individual; (2) entering into a contract or business arrangement that has the effect of discriminating against a disabled individual; (3) implementing adminis-trative procedures or criteria that have the effect
of discriminating against a disabled individual; (4) denying a disabled person equal jobs or benefits; (5) failing to make reasonable accom-modations to allow those with disabilities to perform their job in the workplace; (6) using criteria that screen, or tend to screen, disabled individuals from the workplace; and (7) admin-istering employment tests for the purpose, or partial purpose, of measuring a job applicant’s disabilities In determining whether illegal discrimination has occurred under the ADA, it
is irrelevant that the employer did not intend to discriminate But discriminatory actions are permissible if they are job related and necessary for the business and if the required job per-formance cannot be accomplished with reason-able accommodation
Reasonable accommodation can be modifi-cations or adjustments to the job application process, to the work environment, or to the manner or circumstances under which the job is performed The ADA does not require an employer to reasonably accommodate an em-ployee who does not make his or her disability known to the employer, and unless it is obvious, the employer may legally require documented proof of a disability before accommodating it
Title II of the
Americans with
Disabilities Act
requires state and
local governments
to ensure that modes
of public
transportation—such
as this Oklahoma
City Metro Transit
bus—are accesible to
those with disabilities.
AP IMAGES
Trang 4Examples of reasonable accommodation include
making work areas and nonwork areas such as
lunchrooms and restrooms, accessible;
modify-ing work schedules; modifymodify-ing equipment such
as computers and desks; and providing
inter-preters for blind or deaf workers An
accom-modation that imposes an undue hardship,
causing the employer significant difficulty or
expense, is not a reasonable accommodation
An accommodation that fundamentally alters
the business is also not reasonable For example, a
nightclub would not be forced to provide bright
lighting for a visually impaired employee, because
bright lighting would significantly alter the
nightclub’s business An employer is not
re-sponsible for providing personal items of
ac-commodation such as eyeglasses, leg braces, and
prostheses, nor is an employer responsible for
accommodating current users of illegal drugs
The ADA provides some protection for
rehabili-tated drug users and rehabilirehabili-tated and
non-rehabilitated alcoholics, provided that the
employees do not threaten the employer’s
prop-erty or the health and safety of others in the
workplace Nevertheless, in Raytheon Co v
Hernandez (540 U.S 44, 124 S Ct 513, 157 L Ed
2d 357 [2003]), the U.S Supreme Court
con-cluded that an employer could refuse to rehire a
former drug addict who violated workplace rules
The ADA does not require employers to
accommodate every individual with a disability
Only qualified individuals with disabilities—
disabled individuals who can perform, with or
without reasonable accommodation, the job’s
essential functions—are protected from
dis-crimination Two factors are involved in the
determination of whether a disabled individual
is qualified First, the employer must determine
whether the individual satisfies the job
prerequi-sites at the time of the hiring decision This
determination should not be based on
specula-tive fears that the employee will not be able to
function on the job or that the employer’s
insurance premiums will rise Second, the
employer must determine whether the individual
can perform the job’s essential functions with or
without reasonable accommodation The
essen-tial functions of a job are tasks that are
fun-damental as opposed to marginal Written job
descriptions are frequently considered relevant
evidence of essential functions
To ensure that employers do not consider
a person’s disability at the time of hiring, the
ADA prohibits employers from inquiring about
disabilities or conducting medical examinations
of prospective employees before hiring them It
is illegal to ask questions about medical history, prior workers’ compensation claims, and over-all health before a hiring decision is made The employer is permitted to inquire about the applicant’s abilities as they relate to essential or nonessential job functions—although refusing to hire an applicant because of his or her inability to perform a nonessential job function is prohibited
Upon extending a job offer, the employer may require the prospective worker to submit
to a medical examination, provided that all prospective workers face the same requirement
In fact, a job offer may be conditioned upon the results of the examination, and the employer may RESCIND the offer if the examination indicates that the prospective worker would pose a direct threat to health or safety in the workplace or that he or she would not be able to perform the job’s essential functions even with reasonable accommodation The ADA does not consider tests for illegal drugs to be within its definition of a medical examination; therefore, before extending a job offer, employers may test applicants for illegal drugs, but not prescription drugs or alcohol An employer may legally test for HIV only after an employment offer has been extended Even then, the employer may not fire or refuse to hire an individual because
of that person’s HIV status, unless such discrimination is both related to the job and necessary for the business
When an employer violates the ADA, the
AGGRIEVED PARTY usually is entitled only to equitable relief, such as a court order requiring the construction of wheelchair ramps or the provision of voice-activated computers Only when the employee shows intentional discrimi-nation may compensatory or punitive damages
be awarded Where the dispute involves the provision of a reasonable accommodation, and the employer made GOOD FAITHefforts to make reasonable accommodation, the court may not award money damages; it may award only equitable relief
Public Accessibility and the ADA Title II of the ADA requires that state and local govern-ment programs and activities be accessible to those with disabilities Title III of the ADA applies the same requirement to certain private entities that own, lease, or operate places of public accommodation: (1) hotels, motels, and
Trang 5certain other places of lodging; (2) restaurants, bars, and other establishments that serve food
or drink; (3) theaters, stadiums, concert halls, and other places of exhibition or entertainment;
(4) auditoriums, convention centers, and lecture halls; (5) retail or rental establishments such as grocery stores, bakeries, shopping centers, and hardware stores; (6) self-service laundries, dry cleaners, banks, hair salons, travel services, shoe repair services, gas stations, law offices, accounting offices, pharmacies, doctors’
offices, hospitals, and other service establish-ments; (7) public transit stations and depots;
(8) museums, libraries, and galleries; (9) parks, zoos, and other places of recreation; (10) private schools; (11) daycare centers, homeless shelters, food banks, and other social-service establishments; and (12) health clubs, gymna-siums, bowling alleys, golf courses, and other places of exercise or recreation The ADA does not limit its coverage to the size of the public accommodation; if a private entity fits into one
of the twelve descriptive categories, it must comply with the ADA accessibility requirements
The ADA does exempt from its coverage some private clubs and religious entities
When a private entity falls within a class of public accommodation, it must provide reason-able modifications in its practices, policies, or procedures, or auxiliary aids and services, for those with disabilities, unless such modifica-tions would fundamentally alter the nature of the entity or would result in an undue burden of significant difficulty or expense Title III requires only that those with disabilities be given equal opportunities to achieve the same results as nondisabled individuals For example, a cloth-ing store need not print price tags in Braille
so long as a sales clerk is available to read the price tags to a blind shopper Auxiliary aids, such as closed-captioned televisions for hearing-impaired hotel guests, are required, but this provision is often flexible Thus, the owner or operator of a public accommodation may often determine the type of auxiliary aid to assist the disabled individual, provided that the chosen aid is effective
Title III also requires the owners and operators of public accommodation in existing facilities to remove structural, architectural, and communication barriers when such removal is
“easily accomplishable and able to be carried out without much difficulty and expense” (42 U.S.C § 12181[9]) To determine whether barrier
removal is readily achievable, courts look at the nature and cost of the action needed; the number of people employed at the facility and its financial resources; the action’s effect on the facility; and the size, nature, type, and financial resources of the covered entity Under Title II, state and local governments must remove barriers unless the removal would cause a fundamental alteration to the program or activity, or unless it would cause the government entity an undue financial and administrative burden
A private individual may enforce the provi-sions of Title III, as may the U.S attorney general To enforce the provisions of Title II, a private individual may file an administrative complaint with the appropriate federal agency (usually the agency that provides federal fund-ing to the public entity that is the subject of the complaint) or the U.S.DEPARTMENT OF JUSTICE, or the individual may file a federal lawsuit
On May 29, 2001, the U.S Supreme Court ruled 7–2 that federal disability rights law entitled professional golfer Casey Martin to ride a golf cart between shots while competing
in PGA Tour events (PGA Tour, Inc v Martin, 532 U.S 661, 121 S Ct 1879, 149
L Ed 2d 904[2001]) In reaching its decision, the Court addressed two distinct legal issues, ruling that the PGA tour is a “public ac-commodation” subject to ADA requirements and that under those requirements Martin’s use of a cart was a “reasonable modification.” The decision was the first high court case to interpret the non-discrimination mandate of Title III of the ADA
The ADA and Public Perception Many indi-viduals with disabilities credit the ADA with helping them to overcome the special challenges that they face from day to day From the visually impaired social worker who is able to take his licensing test in Braille to the wheelchair user who is able to park her car just a few yards from her office’s entrance, the ADA has helped many disabled people to become fully functioning members of society But not everyone heralds the act, particularly when the price of compli-ance outweighs the legislation’s effectiveness Business owners complain that they have to make their buildings accessible even when those buildings are never used by disabled individuals Between 1990 and 1995, local governments within Orange County, Florida, spent more than $2 million on architectural
Trang 6changes to make buildings accessible The city
of Winter Park, Florida, spent approximately
$35,000 to make a new tennis facility that
would be accessible to the disabled, yet the
facility’s manager reported that only one
disabled person used the building in the first
year after it opened
Other critics of the ADA contend that the law
is draining administrative and legal resources
During the first three years following the effective
date of the ADA’s employment provisions, the
EEOC reported a 25 percent increase in its
workload owing to ADA-related complaints
About 20 percent of those complaints were
found to be without merit By the early 1990s,
the act had done little to improve the
employ-mentRATEfor those with disabilities According
to figures by the National Organization on
Dis-ability, a private group, as of December 1993, 31
percent of working-age disabled people were
employed, whereas in 1986, prior to the ADA’s
enactment, 33 percent were employed This
number rose gradually throughout the 1990s and
2000s, though The Census Bureau in 2008
reported that about 46 percent of disable persons
were employed, compared with 84 percent of
persons without disabilities
Some legal commentators argue that the act
is evolving continually As courts interpret the
law and Congress refines it, the ADA benefits
will become clearer Peter David Blanck, a
fellow at the Annenberg Washington Program,
has stated that people with disabilities are not
the only beneficiaries of the ADA Businesses
have found a new market, and new technology
developed to help those with disabilities often
helps the nondisabled as well
Restrictions on ADA Application
Defining Disability In Sutton v United
Air-lines (527 U.S 471, 119 S Ct 2139, 144 L.Ed.2d
450 [1999]), the U.S Supreme Court held that
for the purposes of the Americans with
Dis-abilities Act, whether a person has a disability
is to be determined based on the person’s
condition when that person uses corrective
measures The case concerned two women who
had been denied positions as airline pilots
because they each had extremely poor vision
when they were not wearing glasses The Court
held that because the women had perfect vision
when wearing glasses, they were not disabled
and thus not protected by the ADA The court
stated that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures, both positive and negative, must be taken into account when judging whether that person is substantially limited in a major life activity and thus disabled under the [ADA].” That is, to determine whether someone is disabled, ask whether her physical or mental impairment, when mitigated by medication or other correc-tive devices, substantially limits her ability to perform major life activities
In Toyota Motor Manufacturing v Williams (534 U.S 184, 122 S Ct 681, 151 L Ed 2d
615 [2002]), the high court further narrowed the standard for establishing that one has a disability covered under the ADA In that case, Ella Williams, an assembly line worker in a Toyota automobile-manufacturing plant, de-veloped severe carpal tunnel syndrome from her job Her physician imposed limitations on her manual activities, disqualifying her from most of the assembly jobs in the plant Toyota eventually accommodated her by assigning her
to a lighter-duty unit but later required her to rotate to an additional job station, where she had to work at regular intervals with her hands and arms above shoulder height Her disabling symptoms reappeared and worsened, but her request to be returned to her original accom-modation was denied She became unable to work and lost her job soon afterward The
SOURCE: U.S Census Bureau, Americans with Disabilities: 2005, published
December 2008.
Persons with Disabilities, 2005
a
Population refers to the total civilian noninstitutionalized resident population.
Total
Male
Female
Severe disability Minor disability
12.0 6.7
10.6 6.7
13.4 6.7
There were approximately 54.4 million Americans with disabilities in 2005, or 18.7% of the U.S population.
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PER-MISSION OF GALE, A PART OF CENGAGE LEARNING.
Trang 7court ruled that under the ADA, the inability
to perform occupation-specific tasks does not necessarily mean that employee is substantially limited in performing a major life activity
Both decisions were criticized by disability rights advocates as too restrictive Because the Court based its rulings on statutory interpreta-tion, Congress had the ability to explicitly
OVERRULE the interpretations by amending the ADA This occurred when Congress passed the Americans with Disabilities Act Amendments Act of 2008 (Pub L 110-325) The law dealt specifically with the Sutton and Toyota rulings
In its findings to support the 2008 amend-ments, Congress rejected the requirement in Sutton that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures It also rejected the Court’s reasoning with regard to coverage under the third prong of the definition of disability
Congress stated that it was reinstating the reasoning of a prior Supreme Court case, which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973
As for Toyota, Congress stated in its findings that the decision wrongly narrowed the broad scope of protection intended to be afforded by the ADA The Court had interpreted the term
“substantially limits” to require a greater degree
of limitation than was intended by Congress
The amendment was intended in part to reject standards enunciated by the Supreme Court
in Toyota that the terms “substantially” and
“major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled” and that to be substantially limited in performing a major life activity under the ADA
“an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Congress concluded that the ruling created an inappropriately high level of limitation necessary to qualify under the ADA Congress stated that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis
Small Businesses Congress enacted the ADA with some concerns that the statute would drive
up costs for small businesses by requiring ex-pensive accommodations for disabled employees Despite this general policy goal, Congress failed
to precisely define who qualified as an employee under the act In the case of medical, legal, and accounting firms, which are usually organized as professional corporations, this definitional issue has produced a series of court cases Doctors have argued that as shareholders of the corpo-ration, they cannot be classified as employees and, therefore, cannot be counted toward the threshold of 15 employees for ADA purposes In Clackamas Gastroenterology Associates, P.C v Wells (538 U.S 440, 123 S Ct 1673, 155 L Ed 2d 615[2003]), the Supreme Court agreed with this argument, thereby removing thousands of small businesses from the reach of the ADA Damage Limitations In Barnes v Gorman (536 U.S 181, 122 S Ct 2097, 153 L Ed 2d
230 [2002]), the U.S Supreme Court declared that persons excluded by local governments from programs funded with federal dollars may not receive punitive damages, no matter how egregious the discrimination that they have suffered In that case, Jeffrey Gorman, who was confined to a wheelchair, was arrested one night
in Kansas City, Missouri, and transported in
a city police van that did not have the right equipment to take him safely He sustained serious injuries, which prevented him from further gainful employment At trial, the jury learned that the police department had failed to comply with the Rehabilitation Act since its passage in 1973, and even worse, it had done nothing after Gorman was hurt to prevent further injuries A federal appeals court upheld the jury’s damages award of more than $2 million Local officials appealed the punitive damages portion, about half the total award, to the U.S Supreme Court, arguing that punitive damages for disability discrimination could bankrupt city governments Several groups, including AARP, pointed out that in Gorman’s case, and other instances of egregious, intentional discrimina-tion, punitive damages serve the worthy goals of deterring illegal conduct and compensating victims for their unneeded suffering The U.S Supreme Court reversed in a decision reflecting that neither the Rehabilitation Act nor the ADA permits an award of punitive damages in cases of access to public services
Trang 8Eleventh Amendment Issues In University of
Alabama v Garrett (531 U.S 356, 121 S Ct
955, 148 L Ed 2d 866 [2001]), respondents
Garrett and Ash filed separate lawsuits against
petitioners, Alabama state employers, seeking
money damages under Title I of the ADA In an
opinion disposing of both cases, the district
court found that the ADA exceeds Congress’s
authority to abrogate the state’s ELEVENTH
AMENDMENT immunity The Eleventh Circuit
reversed on the ground that the ADA validly
abrogates such immunity The U.S Supreme
Court held that suits in federal court by state
employees to recover money damages by reason
of the state’s failure to comply with Title I of the
ADA are barred by the Eleventh Amendment
Despite the cases that have limited the ability
of Congress to revoke stateSOVEREIGN IMMUNITY,
the Supreme Court has upheld suits under the
ADA against state notwithstanding Eleventh
Amendment arguments In United States v
Georgia (546 U.S 151, 126 S Ct 877, 163 L Ed
2d 650[2006]), the Supreme Court ruled that a
Georgia state prison inmate who was a
para-plegic could pursue a Title II damages lawsuit
against the state of Georgia for the conditions
of the confinement
FURTHER READINGS
Bagenstos, Samuel R 2009 Law and the Contradictions of
the Disability Rights Movement New Haven, Conn.:
Yale Univ Press.
Colker, Ruth 2009 When Is Separate Unequal? A Disability
Perspective New York: Cambridge Univ Press.
Gaskill, Ricca 1994 Americans with Disabilities Act: An
Analysis of Developments Relating to Disability Law.
New York: Practising Law Institute.
Jones, Nancy Lee 2003 The Americans with Disabilities Act
(ADA): Overview, Regulations, and Interpretations.
New York: Novinka Books.
Poston, Sarah 1994 “Developments in Federal Disability
Discrimination Law: An Emerging Resolution to the
Section 504 Damages Issue ” 1992/1993 Annual Survey
of American Law 419.
Russo, Charles J., and Allen G Osborne Jr 2009 Section 504
and the ADA Thousand Oaks, Calif.: Corwin Press.
CROSS REFERENCES
Acquired Immune Deficiency Syndrome; Damages; Equity.
DISABILITY INSURANCE
SeeOLD-AGE,SURVIVORS,AND DISABILITY INSURANCE
DISAFFIRM
Repudiate; revoke consent; refuse to support former
acts or agreements
Disaffirm is commonly applied in situations where an individual has made an agreement and opts to cancel it, which he or she may do
by right—such as a minor who disaffirms a contract
A disaffirmance is a denial or nullification
of the existence of something, as opposed to a revocation, which is the breaking of an existing agreement
DISALLOW
To exclude; reject; deny the force or validity of
The term disallow is applied to such things
as an insurance company’s refusal to pay a claim
DISARMAMENT See ARMS CONTROL AND DISARMAMENT DISASTER RELIEF
Monies or services made available to individuals and communities that have experienced losses due to disasters such as floods, hurricanes, earth-quakes, drought, tornadoes, and riots
The term disaster has been applied in U.S
law in a broad sense to mean both human-made and natural catastrophes Human-made cata-strophes include civil disturbances such as riots and demonstrations; warfare-related upheavals, including those created by guerrilla activity and TERRORISM; refugee crises involving the forced movements of people across borders;
and many possible accidents, including trans-portation, mining, pollution, chemical, and nuclear incidents
Natural disasters are divided into three categories: meteorological disasters, such as hur-ricanes, hailstorms, tornadoes, typhoons, snow-storms, droughts, cold spells, and heat waves;
topological catastrophes, such as earthquakes, avalanches, landslides, and floods; and biologi-cal disasters, including insect swarms and disease epidemics
A disaster may also be defined in sociologi-cal terms as a major disruption of the social pattern of individuals and groups
Disaster relief efforts are typically an exam-ple of federalism at work, as local, state, and national governments take on varied responsi-bilities Disaster relief has historically been considered a local responsibility, with the federal government providing assistance when local and state relief capacities are exhausted
Trang 9Most states have agencies that coordinate disaster relief and planning A majority of states have statutes that define appropriate procedures for disaster declarations and emergency orders
Such statutes also empower relief agencies to utilize state and local resources, commandeer private property, and arrange for temporary housing during an emergency
The federal government has played an increasingly influential role in disaster response and preparedness In fact, as federal disaster assistance grew in the late twentieth century,
it became a unique form of aid to states and localities Significant amounts of money are often made available to a disaster area for years after the disaster has occurred
At all levels of government disaster relief is carried out under the authority of an executive official: a city mayor, a state governor, or the nation’s president In the last instance, federal disaster legislation gives the president wide powers The president decides what situations may be declared disasters and dictates the extent
of federal assistance In most situations, state governors are the appropriate officials to ask the president for federal assistance
Under the Robert T Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) (Pub L No 93-288, 42 U.S.C.A § 5121 et seq.), the president may declare a catastrophe either
an emergency or a major disaster This classifi-cation is not necessarily indicative of the severity
of the event Instead, the designation determines
the extent of federal aid available for the particular calamity In general, more federal funds are available for major disasters than for emergencies For the president to declare either
an emergency or a major disaster, the governor
of the affected state must announce that the catastrophe is of such severity that state re-sources cannot effectively cope with it
After a formal DECLARATION has been made
at the federal level, all authority for disaster relief operations descends from the president, through the FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA), and down to other agencies engaged in relief operations First established in
1979, FEMA coordinates federal efforts related
to natural disaster planning, preparedness, res-ponse, and recovery FEMA funds emergency programs and works closely with state and local governments Since 2003 FEMA has been a component of the HOMELAND SECURITY DEPART-MENT(DHS)
After the president declares an emergency or major disaster, FEMA and other agencies within DHS are responsible for implementing the National Response Framework DHS established the National Response Framework (NRF) in
2008 to replace the National Response Plan The NRF involves cooperative effort between the federal government, nongovernmental orga-nizations, and the private sector The NRF organized responsibilities according to 15 emer-gency support functions (ESFs) that allow the DHS to coordinate the efforts of federal depart-ments and agencies, along with other private and nongovernmental entities The ESFs include: transportation; communications; public works and engineering; firefighting; mass care, emer-gency assistance, housing, and human services; logistics management and resource support; public health and medical services; search and rescue; oil and hazardous material response; agriculture and natural resources; energy; public safety and security; long-term community re-covery; and external affairs
Congress and state legislatures may also make assistance available in times of disaster For example, the Disaster Assistance Act of 1988 (7 U.S.C.A §§ 1421, 1471; 26 U.S.C.A § 451) made $5 billion available to farmers during a severe drought Farmers who had lost more than
35 percent of their crops could receive up to
$100,000 to cover 65 percent of their losses over
an initial threshold When Hurricane Hugo hit
American Red Cross
volunteers in Phoenix,
Arizona, assist
evacuees from New
Orleans during
Hurricane Katrina.
AP IMAGES
Trang 10the southeastern coastal states in 1989, Congress
approved $1.1 billion in aid six days later
Congress has also authorized other agencies
to provide disaster assistance TheSMALL BUSINESS
Administration’s Office of Disaster Assistance
supplies loans to businesses that suffer economic
losses owing to natural disasters TheAGRICULTURE
DEPARTMENTprovides emergency loans to eligible
farmers and ranchers for losses owing to natural
disasters It may also give farmers cost-sharing
assistance in addition to the use of land that was
previously set aside for conservation purposes
The U.S government’s Agency for International
Development makes disaster relief and planning
available to foreign countries
Private organizations, including the Red
Cross and the Salvation Army, play a significant
role in disaster relief In 1905 Congress officially
recognized the Red Cross and its role in
responding to significant crises (36 U.S.C.A
§ 1), and all subsequent federal disaster laws have renewed this recognition The Red Cross makes a careful distinction between its human-itarian relief activities, including the provision
of food and shelter, and activities that it believes are best handled by government
Experts on disaster relief have increasingly called for a greater emphasis on prevention as opposed to relief Plans for improved disaster preparedness often call for a greater use of new technologies, including satellite and radar tech-nologies that aid in the early detection of potential disasters
Before 1950, disaster response was charac-terized by an ad hoc, or case by case, approach
Relief involved a reaction to specific crises with little planning or preparation for future disas-ters Then, as now, it was initially activated by
Lives Lost in Major U.S Weather Disasters, a 1980 to 2008
SOURCE: U.S National Oceanic and Atmospheric Administration, National Climatic Data Center, “Billion Dollar U.S.
Weather Disasters,” available online at http://www.ncdc.noaa.gov/oa/reports/billionz.html (accessed on August 12, 2009).
500
400
300
200
100
0
1985 1988 b
67
1995 1998 13
2000 46
2001 2002 28
2003 131
2004
168
99
2005 2006 c
95
2007 c
22 396
2008 274
10,000
7,000
1990 7,500
1980 b
10,000
2,002
Year
a Weather-related disasters costing $1 billion or more, including hurricanes, tropical storms, floods, droughts, blizzards, severe freezes,
ice storms, and wildfires.
b A drought/heat wave occurred across the central and eastern United States during the summer months.
c Complete data was not available.
140
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